Equity Notes

Equity, Trust and
Easement Act
MRIDUL PANDEY
LLB HONS. 3rd SEMESTER
2024-2025
Equity, Trust and Easement Act
Unit – I (Equity)
Origin and growth of equity in England
Introduction
Equity is a separate system of law from the Common-Law. It has different rules, principles, and
remedies. Thus, to understand the principles on which the Law of Equity is based, we must
understand its origin and the reasons for its requirement despite the presence of a system of law, i.e.
the Common Law. Common Law is the body of customary law which originated in the Curia
Regis (King’s Court), London. English Common Law was primarily developed by judges and was
based on judicial decisions and precedents. The country saw the need for the Law of Equity because
of the following two main reasons:
 Under Common Law, there was only one remedy available, i.e., damages. Thus, a just and
fair remedy couldn’t always be given through Common Law where monetary compensation
was not suitable. This remedy did not always have a significant concluding impact within
cases.
 A civil action under Common Law could only be started by the means of a writ which was a
legal document where it was written why and on what legal basis a person was being sued.
Problems arose when a matter was not covered by any writ. Making of the writs with every
new case was stopped in the 13th century and this meant that if a case was not already
covered by the writs, it was not carried forward.
This generated a huge amount of dissatisfaction among the public because many times they had to
settle with the inappropriate remedies or their cases were not even carried to the court as the writs
were too narrow or rigid. Subsequently, the Court of Chancery was directed to take up the case
which was referred to the king by petition and the Chancery Court developed the Law of Equity.
Equity was mainly thought of as fairness and it was a very powerful law as it overcame the conflicts
with the Common Law. The Chancellor decided the cases of which the King had taken note, he did so
by largely relying on his sense of fairness and justice and thus developed a large body of principles
which became the Law of Equity. It was very important to solve the conflict between the Law of
Equity and the Common Law, this was achieved in the 1615 Earl of Oxford’s Case. In this case, the
King decided that between the conflict of Common Law and Equity, Equity should prevail.
MRIDUL PANDEY Page 2

In the field of jurisprudence, equity is the particular body of law, developed in the English Court of
Chancery,[1] with the general purpose of providing legal remedies for cases wherein the common
law is inflexible and cannot fairly resolve the disputed legal matter. [2] Conceptually, equity was part
of the historical origins of the system of common law of England,[2] yet is a field of law separate
from common law, because equity has its own unique rules and principles, and was administered
by courts of equity.[2]
Equity exists in domestic law, both in civil law and in common law systems, and in international
law.[1] The tradition of equity begins in antiquity with the writings of Aristotle (epieikeia) and
with Roman law (aequitas).[1][3] Later, in civil law systems, equity was integrated in the legal rules,
while in common law systems it became an independent body of law. [1]
Equity in common law jurisdictions (general)

In jurisdictions following the English common law system, equity is the body of law which was
developed in the English Court of Chancery and which is now administered concurrently with
the common law.[4] In common law jurisdictions, the word "equity" "is not a synonym for 'general
fairness' or 'natural justice'", but refers to "a particular body of rules that originated in a special
system of courts".[5]
For much of its history, the English common law was principally developed and administered in the
central royal courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer.
Equity was the name given to the law which was administered in the Court of Chancery.
The Judicature Acts of the 1870s effected a procedural fusion of the two bodies of law, ending their
institutional separation. The reforms did not fuse the actual bodies of law however. As an example,
this lack of fusion meant it was still not possible to receive an equitable remedy for a purely common
law wrong. Judicial or academic reasoning which assumes the contrary has been described as a
"fusion fallacy".[6]
Jurisdictions which have inherited the common law system differ in their treatment of
equity. Over the course of the twentieth century some common law systems began to place less
emphasis on the historical or institutional origin of substantive legal rules. In England and Wales,
Australia, New Zealand, and Canada, equity remains a distinct body of law. Modern equity
includes, among other things:[6][7]
 the law relating to express, resulting, and constructive trusts;
 fiduciary law;

 equitable estoppel (including promissory and proprietary estoppel);
 relief against penalties and relief against forfeiture;[8]
 the doctrines of contribution, subrogation and marshalling; and
 equitable set-off.
Black's Law Dictionary, 10th ed., definition 4, differentiates "common law" (or just "law") from
"equity".[9][10] Before 1873, England had two complementary court systems: courts of "law" which
could only award money damages and recognized only the legal owner of property, and courts of
"equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do
something, give something to someone, or stop doing something) and recognized trusts of property.
This split propagated to many of the colonies, including the United States. The states of Delaware,
Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of
Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a
Chancery Division and a Law Division. There is a difference of opinion in Commonwealth countries
as to whether equity and common law have been fused or are merely administered by the same
court, with the orthodox view that they have not (expressed as rejecting the "fusion fallacy")
prevailing in Australia,[11] while support for fusion has been expressed by the New Zealand Court of
Appeal.[12]
For most purposes, the U.S. federal system and most states have merged the two
courts.[13]
The latter part of the twentieth century saw increased debate over the utility of treating equity as a
separate body of law. These debates were labelled the "fusion wars". [14][15] A particular flashpoint in
this debate centred on the concept of unjust enrichment and whether areas of law traditionally
regarded as equitable could be rationalised as part of a single body of law known as the law of
unjust enrichment.
History of equity in common law jurisdictions

After the Norman Conquest of England in the 11th century, royal justice came to be
administered in three central courts: the Court of King's Bench, the Court of Common Pleas,
and the Exchequer. The common law developed in these royal courts, which were created by
the authority of the King of England, and whose jurisdiction over disputes between the
King's subjects was based upon the King's writ.[19] Initially, a writ was probably a vague

order to do right by the plaintiff,[19] and it was usually a writ of grace, issued at the pleasure
of the King.[20]
During the 12th and 13th centuries, writ procedure gradually evolved into something
much more rigid. All writs to commence actions had to be purchased by litigants from
the Chancery, the head of which was the Lord Chancellor.[19] After writs began to become
more specific and creative (in terms of the relief sought), Parliament responded in 1258 by
providing in the Provisions of Oxford that the Chancellor could no longer create new writs
without permission from the King and the King's Council (the curia regis).[19] Pursuant to
this authorization,[19] litigants could purchase certain enumerated writs de cursu (as a
matter of course) which later became known as writs ex debito justitiae (as a matter of
right).[20] Each of these writs was associated with particular circumstances and led to a
particular kind of judgment.[19] Procedure in the common law courts became tightly focused
on the form of action (the particular procedure authorized by a particular writ to enforce a
particular substantive right), rather than what modern lawyers would now call the cause of
action (the underlying substantive right to be enforced).
Because the writ system was limited to enumerated writs for enumerated rights and
wrongs, it sometimes produced unjust results. Thus, even though the King's Bench might
have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff
might still not have a case if there was not a single form of action combining them. Lacking
a legal remedy, the plaintiff's only option would be to petition the King.
Litigants began to seek relief against unfair judgments of the common law courts by
petitioning the King. Such petitions were initially processed by the King's Council, which
itself was quite overworked, and the Council began to delegate the hearing of such petitions
to the Lord Chancellor.[21] This delegation is often justified by the fact that the Lord
Chancellor was literally the Keeper of the King's Conscience,[22][23] although Francis
Palgrave argued that the delegation was initially driven by practical concerns and the
moral justification came later.[21] The moral justification went as follows: as Keeper of the
King's Conscience, the Chancellor "would act in particular cases to admit 'merciful
exceptions' to the King's general laws to ensure that the King's conscience was right before
God".[23] This concern for the King's conscience was then extended to the conscience of the

defendant in Chancery, in that the Chancellor would intervene to prevent "unconscionable"
conduct on the part of the defendant, in order to protect the conscience of the King. [23]
By the 14th century it appears that Chancery was operating as a court, affording
remedies for which the strict procedures of the common law worked injustice or provided no
remedy to a deserving plaintiff. Chancellors often had theological and clerical training and
were well versed in Roman law and canon law.[22][24] During this era, the Roman concept
of aequitas influenced the development of the distinctly different but related English concept
of equity: "The equity administered by the early English chancellors ... [was] confessedly
borrowed from the aequitas and the judicial powers of the Roman magistrates." [22] By the
15th century the judicial power of Chancery was clearly recognised.
Early Chancery pleadings vaguely invoked some sort of higher justice, such as with the
formula "for the love of God and in way of charity".[25] During the 15th century, Chancery
pleadings began to expressly invoke "conscience", to the point that English lawyers in the
late 15th century thought of Chancery as a court of "conscience", not a court of
"equity".[25] However, the "reasoning of the medieval chancellors has not been preserved" as
to what they actually meant by the word "conscience",[26] and modern scholars can only
indirectly guess at what the word probably meant.[27] The publication of the treatise The
Doctor and Student in the early 16th century marked the beginning of Chancery's
transformation from a court of conscience to a court of equity.[28]
Before that point in time, the word "equity" was used in the common law to refer to a
principle of statutory interpretation derived from aequitas: the idea that written laws ought
to be interpreted "according to the intention rather than the letter" of the law.[29] What was
new was the application of the word "equity" to "the extraordinary form of justice
administered by the chancellor", as a convenient way to distinguish Chancery jurisprudence
from the common law.[29]
A common criticism of Chancery practice as it developed in the early medieval period was
that it lacked fixed rules, varied greatly from Chancellor to Chancellor, and the Chancellor
was exercising an unbounded discretion. The counterargument was that equity mitigated
the rigour of the common law by looking to substance rather than to form.

The early chancellors were influenced by their training in theology and canon law, but the
law of equity they applied was not canon law, but a new kind of law purportedly driven by
conscience.[30] Whatever it meant in the medieval era, the word "conscience" clearly carried
a subjective connotation (as it still does today).[30] Complaints about equity as an arbitrary
exercise of conscience by nonlawyer Chancellors became quite frequent under the
chancellorship of Thomas Wolsey (1515–1529), who "had no legal training, and delighted in
putting down lawyers".[30]
In 1546, Chancellor Thomas Wriothesley, a nonlawyer, was accused of trying to inject

the civil law into Chancery.[31] This was a "wild exaggeration", but as a result, the Crown
began to transition away from clergy and nonlawyers and instead appointed only lawyers
trained in the common law tradition to the position of Lord Chancellor (although there were
six more nonlawyer chancellors in the decades after Wriothesley). [31] The last person without
training in the common law before 2016 to serve as Lord Chancellor was Anthony Ashley
Cooper, 1st Earl of Shaftesbury, who served briefly from 1672 to 1673.[31] (Liz Truss was
appointed as Lord Chancellor in 2016, but this was after the position had been stripped of its
judicial powers by the Constitutional Reform Act 2005, leaving the Chancellor of the High
Court as the highest judge sitting in equity in England and Wales.)
The development of a court of equity as a remedy for the rigid procedure of the common law
courts meant it was inevitable that the two systems would come into conflict. Litigants
would go 'jurisdiction shopping' and often would seek an equitable injunction prohibiting
the enforcement of a common law court order. The penalty for disobeying an equitable
injunction and enforcing an unconscionable common law judgment was imprisonment. [23]
The 1615 conflict between common law and equity came about because of a "clash of
strong personalities" between Lord Chancellor Ellesmere and the Chief Justice of the King's
Bench, Sir Edward Coke.[31] Chief Justice Coke began the practice of issuing writs of habeas
corpus that required the release of people imprisoned for contempt of chancery orders. This
tension reached a climax in the Earl of Oxford's case (1615) where a judgment of Chief
Justice Coke was allegedly obtained by fraud.[32] Chancellor Ellesmere issued an injunction
from the Chancery prohibiting the enforcement of the common law order. The two courts
became locked in a stalemate, and the matter was eventually referred to the Attorney

General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the
equitable injunction and concluded that in the event of any conflict between the common law
and equity, equity would prevail.[33]
Chancery continued to be the subject of extensive criticism, the most famous of which was
17th-century jurist John Selden's aphorism:
Equity is a roguish thing: for law we have a measure, know what to trust to; equity is
according to the conscience of him that is Chancellor, and as that is larger or narrower, so is
equity. 'Tis all one as if they should make the standard for the measure we call a foot, a
Chancellor's foot; what an uncertain measure would this be? One Chancellor has a long foot,
another a short foot, a third an indifferent foot: 'tis the same thing in a Chancellor's
conscience.[34]
After 1660, Chancery cases were regularly reported, several equitable doctrines developed,
and equity started to evolve into a system of precedents like its common law cousin. [35] Over
time, equity jurisprudence would gradually become a "body of equitable law, as complex,
doctrinal, and rule-haunted as the common law ever was".[36]
One indicator of equity's evolution into a coherent body of law was Lord Eldon's response to
Selden in an 1818 chancery case: "I cannot agree that the doctrines of this court are to be
changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting
this place, than the recollection that I had done anything to justify the reproach that the
equity of this court varies like the Chancellor's foot."[35][37]
Equity's primacy over common law in England was later enshrined in the Judicature Acts of
the 1870s, which also served to fuse the courts of equity and the common law (although
emphatically not the systems themselves) into one unified court system.
Statute of Uses 1535

One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a
role that the rigid framework of land law could not accommodate. This role gave rise to the
basic distinction between legal and equitable interests.

In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive
form of trust called 'the use' that enabled one person (who was not required to pay tax) to
hold the legal title of the land for the use of another person. The effect of this trust was that
the first person owned the land under the common law, but the second person had a right to
use the land under the law of equity.
Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an
attempt to outlaw this practice and recover lost revenue. The Act effectively made the
beneficial owner of the land the legal owner and therefore liable for feudal dues.
The response of the lawyers to this Statute was to create the 'use upon a use'. The Statute
recognized only the first use, and so land owners were again able to separate the legal and
beneficial interests in their land.
England and Wales
Equity remains a distinct part of the law of England and Wales. The main challenge to it has
come from academic writers working within the law of unjust enrichment. Scholars such
as Peter Birks and Andrew Burrows argue that in many cases the inclusion of the label
"legal" or "equitable" before a substantive rule is often unnecessary. [15] Many English
universities, such as Oxford and Cambridge, continue to teach Equity as a standalone
subject. Leading practitioner texts include Snell's Equity, Lewin on Trusts, and Hayton &
Underhill's Law of Trusts and Trustees.
Limits on the power of equity in English law were clarified by the House of Lords in The
Scaptrade case (Scandinavian Trading Tanker Co. A.B. v Flota Petrolera
Ecuatoriana [1983] 2 AC 694, 700), where the notion that the court's jurisdiction to grant
relief was "unlimited and unfettered" (per Lord Simon of Glaisdale in Shiloh Spinners Ltd v.
Harding [1973] A.C. 691, 726) was rejected as a "beguiling heresy

2. Fusion of Common Law and Equity

Jurisdiction
INTRODUCTION
The fusion of common law and equity has become a sensible matter of controversy for ages. Many
scholars interpret the concepts of common law and equity in various ways considering the issue of
fusion between them. In the context of the function and nature of the Judicature Acts 1873-75 and
relationship between the common law and equity, the learned author Walter Ashburner very
cogently described that, “the two [common law and equity] streams of jurisdiction, though they run
in the same channel, run side by side and do not mingle their waters”.
This is actually considered as the traditional approach of the relationship between the common law
and equity which, however, requires maintenance of separation of one from the other. On the
contrary, it has been emphasised that common law and equity merged with each other.
Therefore, in order to determine as to whether there is a state of fusion between equity and the
common law, it is necessary to focus on the definitional clarification of these notions along with
their prevailing extent of differences. For this purpose, this essay would discuss the concepts and
differences between the common law and equity in brief; and would critically evaluate the issue of
fusion between them referring to the relevant opinions and interpretations of the cases and
academic scholars.
The Concepts of and Differences between the Common Law and Equity
The equity is popularly defined as: “[A] body of principles, doctrines, and rules, developed
originally by the old Court of Chancery in constructive competition with the rules, doctrines, and
principles of the common law Courts, applied by the unified Supreme Court of England and Wales.”
In other words, it can be said that the equity doctrines, principles, and rules are those which have
been originated in the English Court of Chancery and the common law doctrines, principles, and
rules are developed by the King’s Courts.4 From the very beginning, equity is doctrinally distinct
from common law. Fundamentally, it is appealed that the equity is flexible because it is based on
standards.

On the other hand, the common law is based on rules which favour certainty.5 Nevertheless, the
contemporary notion of this particular distinction makes it clear that there is no difference between
the common law and equity in this line as the common law is shifting away from rule while the
equity is becoming rule bound.6 Interestingly, from the distinction of the equity and common law of
Aristotelian perception of individual justice opposed to universal justice, it is believed that ensuring
individual justice is the main concern of the equity while the common law deals with universal
justice.
Besides, there are some other differences between the equity and common law as regards
their implication. For example, concerning remedies, in case of violation of a right, the equity aims
at preventing the concerned violation of right where the common law determines the reparation for
violation of such right.8 Likewise, awarding the equitable remedy is discretionary whereas under
the purview of common law, remedy can be claimed as of right.9 Additionally, a right recognised
under the common law can be enforced against anyone in the world (right in personem) whereas a
right in equity can be enforced against anybody except a bona fide purchaser of the legal estate for
value.
Concerning “trust”, according to the “pure theory”, in the equity, the interest of property relates to
the trustee’s rights to that thing as raised by Maitland which has, afterwards, been restated by
Professors Burrows, Chambers, McFarlane, Smith, and Stevens. 11 Nonetheless, the common law
view suggests that under a particular trust, the beneficiary has an interest in the trust asset itself.12
In this regard, in the case of Shell UK Ltd. & Others v Total UK Ltd. & Another, 13 the Court of
Appeal (CA) stated that the same “bundle of rights” are treated in an opposing approach in the
common law and equity;
in other words, “[if] the common law sees one person as the owner, [then] the equity sees
another”. 14 Even when both the common law and equity seek for bringing same result in a
particular matter, they generally cannot bring the same and the seeming likeness in the results they
achieve is illusory.15 In this same line, Prof. Sarah Worthington considered the differences between
the common law and equity jurisdictions as an intense philosophical and jurisprudential division.
She clearly mentioned that the differences of approaches of these two bodies are the main
reasons behind such division.17 As an example, Prof. Patricia Loughlan’s description of
differences of precedential approach of the common law and equity has mostly been addressed. She
postulated that in applying the precedents, the common law is rigid whereas the equity is not bound
by the experiences of the past.18 Considering the position of equity, she specified that, in the absence

of any methodology or any binding standard maintaining the values of continuity, consistency,
uniformity and predictability, the Chancellor’s conscience used to develop the equity for ensuring
justice.19
Nonetheless, in the case of Harris v Digital Pulse Pty Ltd, 20 the CA of New South Wales
was very reluctant to interpret the equitable remedies to incorporate the same in the common law
exemplary damages for the reasons that there was no precedent to enable equity to adopt this
approach as well as there was no approval of the High Court. 21 Hence, it is nowadays perceived
that the common law and equity run together in applying the precedents.
“Fusion Fallacy" of the Common Law and Equity

in the Context of the Judicature Acts The Judicature Act was enacted to ensure concurrent
administration of both the common law and equity jurisdiction by one particular body.22 From
them, the concerned Courts became quite liberal to interpret the concepts of the common law and
equity, and became reluctant to maintain the differences between them.23 In this view, the
principles, rules, and doctrines of both the common law and equity merged with each other. On the
other hand, it is argued that the purpose of the Judicature Acts was to create a separation between
the common law and equity principles and thus, this Acts did not intend such fusion. However, in
this respect, Sir Mason P specified in the Harris v Digital Pulse Pty Ltd.24 case that the fusion
of the common law and equity is independent of any statute.
Contextually, under the purview of Section 25 of the Judicature Act 1873, it is certain that the
foremost purpose of this Act was to abolish the common law system of pleading in order to merge
the procedures of the old common law and equity jurisdictions which would be administered by a
single tribunal.25 Along with, the next purpose was to place the equity over the common law so that
in case of any conflict between them, the equity would prevail.26 Now, if we ponder on the issue
raised by Justice Meagher in the case of G R Mailman & Assoc. Pty Ltd. v Wormald (Aust) Pty Ltd,
27 as to whether the said Act created any substantive fusion of the common law and equity, we need
to consider the wordings of this particular provision. The prior discussion makes it clear that the
purpose of this Act was to transfer the old jurisdiction of the common law and equity to a single
tribunal which would administer the jurisdiction.
Therefore, it is unquestionable that the Act did not intend to bring any substantive change of these
jurisdictions. Instead, it recognises that the common law and equity are distinct in nature and in
effect. In this concern, it can be concluded that the Judicature Acts intended to amalgamate the
procedural and administrative matters only while the fusion fallacy survives to the extent that this
particular Act itself does not permit the merging of these two jurisdictions.28 To understand the
issue of fusion of the common law and equity in the context of the Judicature Acts, the matter of
“remedial fusion” which is considered as the principal issue of the fusion controversy needs to be
addressed.29
In this regard, the Judicature Acts oppose the notion that, “equity does not destroy the law, nor
create it, but assists it,” and thereby, it simply authorises remedial fusion debate.30 Nonetheless, in
some of cases of breach of confidence; for instance, in the case of A-G v Wellington Newspaper Ltd.,
31 the Court authorised the common caw and equity remedies to be fused. Similarly, in the case of
Aquaculture Corporation v NZ Green Mussel C Ltd. 32 the award of compensatory damages to the
plaintiff was not adequate compare to the loss caused to him; therefore, the CA of New Zealand
recognised exemplary damages for breach of confidence to the defendant for conducting such
contemptible acts. Likewise, in the case of Cadbury Schweppes Inc. v FBI Foods Ltd. 33 the
Canadian Court granted the fusion of the common law and equity in a similar case
What is more, in a very recent case concerning Harris v Digital Pulse, 34 both Heydon JA and Sir
Mason P reiterated that fusion of the equity and common law exists even by a way of independent
statute, and the Judicature Acts came into operation to exclude the doctrinal fusion of the common
law and equity. Interestingly, as regards the exemplary damages as mentioned above, Heydon JA
depicted that, an example of fusion fallacy of the common law and equity is awarding of exemplary
damages, considered as the common law remedy, in case of equitable wrongs.35 This is just left to
be justified due to the absence of a specific provision of any law which would administer both the
jurisdictions in a distinct Court.
From the above discussion, it is clear that the fusion of the common law and equity has crucially
become a debatable issue since the procedural and administrative fusion was purposed to be created
by the Judicature Acts 1873-75. It must be mentioned here that there are valid arguments both of the
“fusionist school of thought” and “anti-fusionist school of thought”. To be precise, arguments of these
different schools of thought are being portrayed in the following:
Firstly, the strongest argument of the anti-fusionist school of thought is that the Supreme Court of
the Judicature Acts 1873-5 merged the procedural and administrative matters of the common law
and equity jurisdictions but did not merge the substantive law.36 It is believed that the common law
and equity sit together because it is very rare that they conflict each other.37 Even if any conflict
arises between these two jurisdictions, it will be resolved by general provision i.e. Section 11 of the
Judicature Acts 1873 instead of the specific provision of the same. Section 11 of the Act requires that

equity shall prevail when there will be conflict between the common law and equity jurisdiction.
However, this school of thought strictly discourages others not to develop the law by reasoning from
equity to common law or common law to equity.
Corresponding to the anti-fusionist school of thought, in the case of Salt v Cooper, 39 Sir George
Jessel MR pointed out that referring to “the fusion of common law and equity” is absolutely
erroneous since the Judicature Acts did not create any fusion of them rather it vested to one single
tribunal the power of administration of the common law and equity. In the case of Felton v
Mulligan, 40 Windeyer J adopted the statement made by Walter Ashburner that even though the
common law and equity run in the same channel, they do not mingle with each other. Furthermore,
in an Australian case of Pilmer v The Duke Group Ltd, 41 Kirby J stated that the body of rules,
principles, and doctrines of equity has already retained its distinct identity. He also added that this
view is considered as a method of upholding the doctrinal dualism of the equity and common law.42
On the contrary, the fusionist school of thought points out that with the purpose of merging the
procedural and administrative matters of both the common law and equity, the Judicature Acts
1873-5, without uttering the fusion of the substantive law, initially rendered the way of a possibility
of such fusion.43 This school of thought concedes with the anti-fusionist school of thought to the
extent that both the common law and equity sit together; however, considering the existing
inconsistencies between them, this school of thought suggests for producing a harmonized law.44
For this purpose, it believes that a harmonized law would be developed by reasoning from the equity
to common law and the common law to equity which is completely contradictory to the belief of the
anti-fusionist school of thought.45 This school of thought is appreciated for its belief because instead
of being slave of the history, it introduces a way of treating like cases alike.
However, R.P. Meagher, J.D. Heydon and MJ. Leeming “positively” explains the fusion fallacy of the
common law and equity by giving an example i.e. the “damages for breach of fiduciary duty” was
not previously available neither in equity nor in the common law, but through the fusion of them
and in the garb of “the administration of a remedy,” the common law damages for the same was
evolved.46 This point of view seems to be a refreshing argument of the fusion fallacy of the common
law and equity. Just to add, the statement of Deane J made in the case of Waltons Stores (Interstate)
Ltd v Maher47 can be referred to which requires not to preserve the significance of the historical
distinctiveness of the common law and equity unjustifiably, rather the development of a unified
legal system needs to be assumed.

Critical Evaluation of the “Fusion Fallacy” and the “Middle Ground”

The fusion of the common law and equity has become a necessity as it can bring consistency of the
case decisions. While both common law and equity principles, rules, and doctrines would be applied
in a particular matter of concern, the conclusion would be same in each case. Remarkably, the
procedural aspects of both the bodies have been assumed to be fused under the purview of the
Judicature Acts 1873-5 while the substantive matters are yet to be merged. For this reason, it is seen
that if anyone merges the common law and equity together, he or she is being made liable for
creating a fusion fallacy between them. One should not forget that both the common law and equity
become supplementary to each other when it is required for ensuring social as well as legal justice to
the people. The concept of “trust” which has been emerged from equity is an example of
supplementary relationship between the common law and equity.
It seems that the time of establishing equity rule, principles, and doctrines has been passed. At
present, equity principles have been set as standards of social morality and values which create a
danger in using the equity’s power in extending limits of the common law. Here, one might ask as to
why it is referred to as a danger for the equity? The response is that if it goes on for long, one day
there will be no legislative body to deal with the power of equity. At this instant, it can be said that
there are many difficulties in fusing the common law and equity. From the very nature of equity, it
is generally related to the prevailing morality and values of the society. Thus, an endeavor of
merging the common law and equity would create an identity crisis of both the bodies of jurisdiction
as they are distinct in nature and ideology. Moreover, in such circumstances, the equity would fail
to intervene in the cases of unconscionability. Nevertheless, it cannot actually be concluded that the
common law and equity did not merge with each other.
Through the evolution and usages of both the common law and equity, a middle ground has also
been evolved to apply the same in particular situations. Sometimes it is seen that there might be
gaps rendering certain situations where in one case a claim may not be entertained and fulfilled but
in other case(s) materially similar kind(s) of claim may be entertained. 48 Considering such
situations as middle grounds, there must be uniformity of both the bodies of jurisdiction for the sake
of ensuring justice and avoiding differences of solutions to the materially similar legal issues.49 For
illustration, in the question of discrepancy between the decisions of the cases concerning legal and
equitable title to property, a legal owner of a stolen property which has been sold further can simply
claim the value of the property while the person can claim the property itself in equity.50 In such

cases, the fusion of the common law and equity may make it possible to ensure same remedies in
materially similar situations.
Conclusion
To sum up, it can be placed that the common law and equity are distinct in features and application.
However, after the emergence of the Judicature Acts 1873-5, the question of fusion fallacy of both
the jurisdictions arises. The two schools of thought namely “anti-fusionist” and “fusionist” have
arguments both for and against the debate of fusion fallacy of the common law and equity.
However, the Judicature Acts were clear enough with their purpose that only the procedural and
administrative matters of both the jurisdictions would be merged. Thereby, the fusions of
substantive issues were yet to be merged at least not under the said Acts. In one side, the legal
implications of both the jurisdictions necessitate a harmonized process to ensure same remedy for
similar kinds of cases corresponding to the fusionists.
However, the other side brings a concern that if they are merged together, they will no longer
remain as like their initial stage. In this regard, I believe that instead of creating a situation where
one would become dominant over another, both these jurisdictions may be kept distinct and equity
may be supplementary to the common law. Otherwise, equity would not be able to intervene to
provide equitable remedies deviating from the strict rules of law.
The fusion of common law and equity is a pivotal development in the history of legal systems,
particularly in jurisdictions influenced by English law. Historically, common law and equity were
two distinct systems. Common law, developed by judges through decisions in individual cases,
focused on strict rules and legal principles. Equity, on the other hand, emerged to address the
rigidity and occasional unfairness of common law by providing more flexible and just remedies.
Historical Background
In medieval England, common law courts were the primary judicial bodies. However, as common
law developed, its rigid procedures and limited remedies often led to unjust outcomes. To address
these issues, the Court of Chancery was established, which administered equity. Equity provided
remedies such as injunctions, specific performance, and trusts, which were not available under
common law.
The Judicature Acts

The formal fusion of common law and equity began with the Judicature Acts of 1873-1875 in
England. These Acts merged the administration of common law and equity into a single court
system. This meant that a single court could apply both legal and equitable principles, allowing for
more comprehensive and fair outcomes1.
Distinct Roles
Despite the administrative fusion, common law and equity continue to play distinct roles. Common
law deals with legal rights and obligations, while equity focuses on fairness and justice. For
example, if a contract is breached, common law might award damages (monetary compensation),
whereas equity might order specific performance (requiring the party to fulfill their contractual
obligations).
Example
Consider a scenario where a person, Alice, enters into a contract to sell a rare painting to Bob. If
Alice later refuses to sell the painting, Bob can sue for breach of contract. Under common law, Bob
might receive monetary compensation for his loss. However, if the painting is unique and Bob wants
the painting itself, he can seek an equitable remedy of specific performance, compelling Alice to sell
the painting to him.
Modern Implications
In modern legal practice, the fusion of common law and equity allows courts to provide more
holistic remedies. For instance, in a case involving a breach of fiduciary duty, a court can award
damages (a common law remedy) and impose a constructive trust (an equitable remedy) to ensure
justice is served2.
Conflict Resolution
When there is a direct conflict between common law and equity, equity typically prevails. This
principle ensures that fairness and justice are prioritized. For example, if a legal rule would result in
an unjust outcome, an equitable principle can override it to achieve a fair result 3.
Conclusion
The fusion of common law and equity has significantly enhanced the flexibility and fairness of legal
systems. By allowing courts to apply both legal and equitable principles, it ensures that justice is not
only done but seen to be done. This fusion has made legal systems more adaptable and capable of
addressing complex issues in a just manner.
Position of Equity under Indian legal system

Abstract
This abstract offers a brief synopsis of the research that explores the Rule of Equity in Indian law. It
examines its fundamental ideas, historical development, and ongoing relevance in contemporary
India. An essential part of India’s legal system, equity has a long history that began with prehistoric
jurisprudential practices and was greatly impacted by British legal customs. It incorporates
fairness, justice, and flexibility principles and serves as a crucial check on common law’s rigidities.
This study traces the origins of equity in India back to the colonial era and looks into how it has
evolved over time. It carefully examines how the fundamental principles of equity, including trust,
fiduciary obligations, and injunctions, have been incorporated into Indian law. Equity still has a
major influence on how legal remedies are shaped and how complicated issues beyond the
boundaries of a statutory law are handled in modern India. Its applicability can be seen in cases
involving human rights, environmental protection, and business disputes, among other areas. This
study emphasizes the Rule of Equity’s continuing importance in India, highlighting its adaptability
and capacity to meet changing societal and legal needs, helping to create a more just and equitable
legal system there.
Introduction
Equity[1] is a fundamental and enduring feature of Indian law. It consists of principles, maxims,
and judicial doctrines that supplement statutory law by addressing the shortcomings and rigidity of
strict legal rules. In India, the concept of equity has evolved significantly over time, drawing on
various sources such as English common law, Hindu law, Islamic law, and indigenous customs. This
research paper looks at the rule of equity in Indian law, its historical evolution, and its current
relevance. The courts, particularly the High Courts and the Supreme Court, are the primary
administrators of equity in India. It is invoked when strict legal rules may result in unjust or
unconscionable outcomes. Equity seeks to provide just and equitable remedies, even if they are not
expressly recognized in statutory law. In India, common equitable remedies include injunctions,
specific performance, and constructive trust. Equity is also important in softening the harshness of
common law principles and ensuring the protection of individual rights. It seeks to balance the
scales of justice by taking the unique circumstances of each case into account. In essence, the Rule of
Equity in India serves as a necessary tool for promoting justice, morality, and fairness within the
legal system, ensuring that the law is adaptable and responsive to society’s ever-changing needs.
Equity itself is derived from a Latin word which means Justice and egalitarianism. It is a system of
law which emanated in the English chancery and encompasses a formal body of indispensable and
procedural rules and doctrine, that appendage or override common and statutory law. The law
relating to equity is largely based on precedent. Since, it is not viable on the part of the state to
contrivance a comprehensive code of law in order to supervise every eventuality. Wherein, Law and
Equity goes side by side. Equity is consequential in the legal world because men and laws are

fallible. A Court of Equity, Chancery Equity that is legally approved to apply the principle of Equity,
as opposed to the law, to cases brought before it. The principles and rules emerging from the
exercise of residuary powers, which forms the living source of the law of the state. Different jurists
have their different opinion related to the meaning of equity. The system includes some portion of
natural justice which is judiciary enforceable.
Origin of Equity in India

In India, Equity has its origin from the relevant ancient Hindu period, when some of the well-known
legal experts defined the old law and set out the new rules for a better edible solution in case of any
conflict arising between rules of different laws. Hindu law has never been undeviating and has
accordingly introduced equitable principles to meet the requirements of the time. The smritis were
the oldest attempt for the compilation of law. In which smriti karas (the author of Smriti) have
actually conceded the principle of law. It was stated that decisions should not be exclusively based
on scriptures, there should be principles based on reasons. These reasons-based principles are
qualified with the term equity.
Objective
This article aims to trace the historical evolution of equity in Indian law, including its origins,
influences, and development, to analyze the principles and maxims of equity and their relevance in
the Indian legal system, to investigate the interface of equity and statutory law, including conflicts,
statutory interpretation, and the role of the Indian Constitution, to assess the role of the judiciary in
upholding equity through judicial activism, landmark cases, and precedent, to identify challenges in
applying equity in the Indian legal system, particularly in a diverse and complex society, to explore
the contemporary applications of equity in legal practice, including alternative dispute resolution,
family and personal laws, and environmental and human rights law, to discuss opportunities for
advancing equity in Indian law through legal reforms, empowerment of the disadvantaged, and
legal education, to offer a comparative analysis of equity in Indian law with other legal systems,
drawing lessons and insights.
Historical Evolution of Equity in India

The historical development of equity in Indian law is an enthralling[2] journey that can be traced
back to English common law and the equitable principles that were gradually incorporated into the
Indian legal system. Here’s a quick rundown of this evolution:
1. Colonial Inflection (17th Century): The concept of equity can be traced back to the British
colonial period in India. The British East India Company established its presence during this
time, and the legal system was initially influenced by English common law and equity. In
India, British courts began to apply equitable principles alongside the existing legal
framework.

2. Equity Codification (19th Century): As the Indian legal system developed, English law was
increasingly incorporated. However, equity was not codified in India. Instead, Indian courts
sought guidance from English equity. When strict legal rules failed to deliver justice, the
Indian judiciary used equitable principles to provide remedies, particularly in cases involving
trusts, property, and family matters.
3. Indian Trusts Act (1882): The Indian Trusts Act was enacted in 1882 to formalize the
application of equitable principles. This Act codified many aspects of trust law, which is a
fundamental component of equity. It defined trustees’ and beneficiaries’ rights and duties,
further solidifying the role of equity in Indian law.
4. Judicial Interpretation and Equity in the Twentieth Century: Indian courts continued to
apply and adapt equitable principles, drawing on both English equity and their own evolving
case law. To address unique and complex legal issues, they used equitable remedies such as
injunctions, specific performance, and rescission.
5. Constitutional Influence: Following India’s independence in 1947, the Indian Constitution

was enacted in 1950. The principles of justice, equality, and fairness, which are compatible
with equitable principles, were upheld by the Constitution. This solidified equity as a critical
component of the Indian legal system.
6. Continuing Role of Equity: Today, equity remains an integral part of the Indian legal
landscape. The Indian judiciary regularly invokes equitable principles to ensure justice and
fairness, especially in cases involving property disputes, contracts, family matters, and
trusts. Indian courts have embraced equity as a means to adapt and provide remedies in
situations where strict statutory law may fall short.
The evolution of equity in Indian law over time demonstrates its enduring importance in addressing
legal and moral complexities, providing remedies when strict legal rules are insufficient, and
upholding the principles of fairness and justice within the Indian legal system.
Equitable Remedies
There are some remedies available by the court of law mainly for the plaintiff just to compensate for
the damages he has suffered from. Some of them are:
1. Injunctions: It is a type of remedy in which the court provides the certain law and order
which the parties are pressured to do or abstain from doing a certain specific task. Case Law-
Mohd. Afzal Shah v. Ghulam Ahmad Shah and Ors.
2. Specific performance: In this type of remedy, the court passes a statement to the parties in
order to fulfil certain tasks which are interlinked or already a part of a contract. Case Law-
Executive Committee of Vaish v. Lakshmi Narain and Ors.

3. Recession: This remedy alternatively takes back the parties to their normal position as they
were in before entering the contract. Case Law- Bedi and Bedi Ltd. Bangalore v. The
Commissioner of Central.
4. Rectification: In this type of remedy court orders to rectify or make certain changes in the
written document so that to reflect what is actually said on the first page. Case Law- M/s
Harinagar Sugar mills Ltd. V. Shyam Sunder Jhunjhunwala.
Equity and adequate ethics have also been expressly laid down with laws. The English laws also
contributed to the development of Equity in the jurisdiction of India. In Indian, the common law
doctrine of equity had been followed even after the independence. The principle of law has been
stated in various laws such as:
➢ The Specific Relief Act, 1877
➢ The Indian Trusts Act, 1882
➢ The Indian Succession Act,1925
➢ The Transfer of Property Act,1882
General Principles of Equity

The methods relating to the unbiased jurisdiction are basically derived from the crucial truth of
righteousness. The importance of the maxims not to be exaggerated as it is really a far more from
immutable principles. There are some of the principles which have their own ultimate source of
equity as these sources are also termed to be as a maxim. These are the general principles which
broadened under the term equity, some of them are recapitulated below:
He who seeks equity must do equity:

➢ This maxim clearly shows a directive on the applicant of equity. Here the maxim mainly put its
main source on the rectitude of the court. Case Law- Chappell v. Times Newspaper Ltd. Facts- Here
the injunction was not granted to the employees who were mainly wishing to stop their employer
releasing the contract in the form industrial dispute.
Equity follows the Law:

➢ This maxim means that the equity does not violate the law. It follows the appropriate form of
law.
Equity will not be a wrong to be with or without a remedy:

➢ This maxim states that it is developed as common law which basically doesn’t lay down any new
remedies but it has only nominal damages. Case Law- Patterson v. Murphy
Equality is equity:

➢ This maxim means that when two or more parties have their common interest but due to some
specific reason their interest has not been qualified, then the equity as a source may divide their
interest equally. Case Law- Flight v. Bolland Facts- In this case minors are not granted with the
specific performance of tasks against the adults, as minors are not eligible for a contract to be
enforceable.
Principle of Equity
Both equitable and common law principles have an impact on the fundamental component of Indian
law, which is the concept of equity. Fairness, justice, and the application of legal remedies in
circumstances where strict adherence to the letter of the law might result in unfair or inequitable
outcomes are all referred to as equity in Indian law. It enables the courts to grant relief when the
imposition of stringent legal requirements would cause hardship or injustice.
Various doctrines and remedies, including the following, can be used to understand the principles of
equity in Indian law:
1. As an equitable remedy[3], specific performance allows a court to compel a party to fulfil a

particular contractual obligation rather than just compensating damages. It is usually used
in situations where contracts are involved in the sale of real estate or rare objects.
2. Indian courts have the authority to grant injunctions to stop a party from acting in a way
that could cause harm to another party. Mandatory injunctions require a party to do
something, whereas prohibitor injunctions prevent a party from acting in a certain way.
3. Trusts: In Indian law, the idea of trusts and the concepts that surround it, such as the
fiduciary duty of trustees, are crucial to equity.
4. Laches and Acquiescence: Delay and inaction are covered by these equitable principles. The
court may decline to grant equitable relief if a party acquiesces to a particular situation or
delays in asserting their rights in an unreasonable manner.
5. Estoppel[4]: This legal theory forbids a party from withholding information or rights
because of previous actions or statements made by that party. It is employed to maintain
consistency in legal relationships and to stop injustice.
6. Unjust Enrichment[5]: If a party has unfairly benefited at the expense of another, a court
may order that party reimburse the other party. This is known as the unjust enrichment
principle.
It’s crucial to remember that Indian law’s equity principles are not applied in a vacuum. In order to
guarantee justice and fairness in particular situations, they are incorporated into the legal system
and utilized in conjunction with established legal regulations and statutes. Even in cases where

there may not be a specific statutory provision that directly addresses a given situation, equity
enables the judiciary to provide remedies that are consistent with the values of justice and fairness.
Maxims of Equity
The fundamental ideas known as maxims of equity serve as a guide when applying equitable
remedies and concepts in court. These adages provide courts with a moral compass to guarantee
justice and fairness. Among the fundamental equity maxims are:
1. Equity follows the law: Laws are followed by equity, which is intended to supplement rather
than replace the current legal system. It becomes relevant when the legal system is unable to
offer a fair remedy.
2. Equity will not suffer a wrong to be without a remedy: Equity won’t allow a wrong to go
unpunished: Equity intervenes to stop injustice in situations where a legal remedy is
insufficient or non-existent.
These adages serve as a guide for judges when implementing equitable principles and remedies,
guaranteeing that justice and fairness win out in court, especially in situations where the rigorous
application of the law could have unfair consequences.
Relevance and Application of Equity Principles in Indian Law

The Indian legal system heavily relies on equity principles, which add a crucial element to the
administration of justice. Their significance and use are as follows:
1. Complementing Legal Principles: Equity principles apply when applying the law strictly
could result in unfair consequences. They serve as a corrective measure to guarantee that
justice and fairness are upheld in circumstances that statutory law is unable to sufficiently
address.
2. Specific Performance and Injunctions: Indian courts frequently award specific performance
or injunctions by using equity. Courts may compel parties to carry out particular tasks or
abstain from taking particular actions in contracts involving the sale of real estate, rare
objects, or to stop harm.
3. Trusts and Fiduciary Duties: In India, the concept of trusts is based on equity principles,
which govern trustees’ fiduciary duties and guarantee that they act in the beneficiaries’ best
interests.

Principles of Equity
The following theories and remedies, among others, might be utilized to comprehend
Indian legal equity principles:
 Rather than merely awarding damages, a court may utilize specific performance as an
equitable remedy to force a party to fulfill a specific contractual obligation. When contracts
are engaged in the sale of rare or real estate, it is typically utilized.
 Indian courts have the power to issue injunctions to prevent someone from acting in a way
that would endanger another person. While mandatory injunctions stop a party from
behaving in a certain way, mandatory injunctions force a party to take action.
 The notion of trusts and related ideas, such the trustees' fiduciary duty, are essential to justice
in Indian law.
 These fair principles also apply to inaction and delay. If a party acquiesces to a certain
circumstance or delays in pursuing their rights in an unreasonable manner, the court may
fail to give equitable remedy.
 A party is prohibited by estoppel from withholding information or rights due to prior deeds
or remarks made by that party. It is used to prevent unfairness and preserve uniformity in
legal relationships.
 A court may order one party to reimburse another if that party wrongfully profited at that
other's expense. The unfair enrichment principle refers to this.
Hindu Law
To understand Indian legal equity concepts, one may apply various theories and remedies such as
the following: Specifically, a court may use particular performance as an equitable remedy to
compel a party to perform a contractual commitment, instead of only awarding damages. It is
usually used in negotiations involving the sale of real estate or rare items.
Indian courts has the authority to grant injunctions to stop an individual from acting in a way that
could put another person in danger. Mandatory injunctions compel a party to act, as opposed to
only stopping them from acting in a particular manner.
In Indian law, the concept of trusts and associated concepts, such the fiduciary obligation of
trustees, are fundamental to justice.
Muslim Law
In Mohammedan law, the notions of equity are also easily discernible. Abu Hanifa, the founder of
the Hanafi Sect of Sunnis, explained the concept that the rule of law based on analogy could be

abandoned at the judge's discretion based on a liberal interpretation or judicial preference to satisfy
the needs of a particular case. In Mohammedan law, these are called "Istihsan" or "Juristic Equity".
About the Law of Mohammed. The main Works on Mussalman Law's chapter on the Qazi's duties
(Adab) makes it abundantly evident that the English equity rules and equitable considerations that
are widely accepted in the Courts of Chancery are not alien to the Mussalman System and are often
referred to as English equity.
The East India Company Courts were required by Regulation of 1827 to conduct themselves in a
way that upheld justice, equity, and good conscience because there was no explicit law or practice in
place. Clause 36 of the Supreme Court Charter of 1823 expressly defined the Supreme Court of
Bombay as a Court of Equity, granting it equitable jurisdiction equal to that of the Court of
Chancery. Almost all subsequent Acts explicitly stated the principles of "justice," "equity," and "good
conscience" for the guidance of judges.
Significance of Equity Under Indian Law:-

Equity considerations apply when applying the law precisely can have unfair consequences. They
serve as a corrective measure where statutory law is insufficient to guarantee the preservation of
justice and fairness. Indian courts frequently award particular performance or injunctions based on
equity. Courts have the power to dictate to parties what needs to be done or what they must not do
in contracts pertaining to the sale of real estate, rare objects, or to avoid harm. The Indian concept
of trusts is based on equity principles, which govern trustees' fiduciary duties and guarantee that
they act in the best interests of the beneficiaries.
Equity in Common Law Jurisdictions

In common law jurisdictions—the United States, the United Kingdom, and many other nations with
a common law legal heritage—equity is a branch of law that works in tandem with common law to
guarantee justice and fairness in situations where stringent legal guidelines may have unfavourable
consequences. Here’s a quick rundown:
1. Historical Development: In the past, equity arose in reaction to common law’s shortcomings,
since strict guidelines frequently failed to produce equitable results. The development of
equitable principles was significantly influenced by the Court of Chancery in England.
2. Maxims and Principles: The following are some of the maxims and principles that govern
equity: “Equity follows the law,” “He who seeks equity must do equity,” and “Equity will not
suffer a wrong to be without a remedy.” These tenets guarantee the consistent and moral
application of equitable remedies.
Equity is still vital in common law jurisdictions because it strikes a balance between the need for
justice and fairness in particular situations and the common law’s sometimes strict and technical
rules. This dual legal system guarantees a more thorough approach to settling legal conflicts and
encouraging just outcomes.

Conclusion
In conclusion, the rule of equity in Indian law functions as a counterbalance to the frequently
rigorous and detailed rules of statutory law, making it an essential and dynamic part of the nation’s
legal system. The use of equity in Indian law has changed over time as a result of both historical and
modern influences. It is essential for guaranteeing equity, justice, and fair remedies in cases where
the strict application of the law could lead to injustice. To put it briefly, equity in Indian law is
essential to the goal of a just and equitable society because it keeps the law sufficiently flexible to
meet the intricacies and subtleties of contemporary legal issues while maintaining the ideals of
justice and fairness.
Maxims:-
(i) Equity will not suffer a wrong to be without a remedy.
(ii) Equity follows the law.
(iii) Where equities are equal, the law shall prevail.
(iv)Where equities are equal, the first in time shall prevail.
(v) He who seeks equity, must do equity.
(vi) He who comes to equity, must come with clean hands.
(vii) Delay defects equity.
(viii) Equality is equity.
(ix) Equity looks to the intent, rather than to form.
(x) Equity acts in personam
(i) Equity will not suffer a wrong to be without a remedy

Equity will not suffer a wrong to be without a remedy
This maxim is a restricted derivation of a more comprehensive legal maxim, “Ubi jus Ibi
remedium” i.e., where there is a right there is a remedy. Rights and remedies co-exist as has been
said in the case of Ashby v. White. “When the law clothes a man with a right, he must have means
to vindicate and maintain it, and remedy if he is injured in the exercise and employment of it and
indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy
are reciprocal.”
This maxim gives the way that each and every right has to be enforced and the wrongs have to be
redressed by equity if they are incapable of being redressed by the common law. This maxim is the
backbone of the whole jurisdiction of equity.
It is to be noted that this maxim treats ‘Need of Right’ and ‘Need of Remedy’ reciprocal. The
basic idea behind the jurisdiction of equity is that no wrong should go unredressed provided it was

capable of being remedied by the courts. In the early period, Equity transformed moral wrongs into
legal wrongs and then later on used this maxim to enhance the jurisdiction.
In fact, the very object of this maxim is to give effect to a right which is suitable for judicial
enforcement but which was not enforced at common law on account of some technical defect.
Essentials Of This Maxim

In order to invoke the aid of this maxim either of the three conditions should exist, namely—
 The right be recognised by the law, although not by law.
 The right be recognised by the law, although the remedy be not available there,
 The remedy at law for the violation of the right be not complete or adequate.
Importance Of This Maxim

This maxim led the Chancellor to intervene in the Administration of Justice in order:-
 To give relief where the common law gave none.
 To give an adequate relief where the one available in common law courts was inadequate.
 To help the litigants by offering facilities in evidence and procedure which the common law
courts did not secure.
Limitations
The maxim is subject to the following restrictions:
 The maxim does not apply where the right in question is a moral one and is not capable of
being judicially enforced. The Court of Equity only interferes when there is an invasion of
legal or equitable rights.
 The second limitation is that Equity does not interfere to remedy any wrong where the right
and the remedy, both completely belong to the domain of the law.
 The maxim does not apply where a party has destroyed, lost, or waived his right to an
equitable remedy by his own act or laches.
With these limitations the principle has been developed into the vast range of equitable jurisdiction
which provides following remedies:
 Legal remedies for the violation of the legal rights in a more certain, adequate and complete
manner than the law can give;
 Equitable remedies for violation of legal rights which the law has no power to give.

The maxim, "Equity will not suffer a wrong without a remedy" is a cornerstone of the area of equity
and trust law. It expresses the fundamental principle that courts can look to equity to ensure
fairness and supply suitable remedies when a legal system's existing remedies fall short of providing
adequate justice or when implementing rigid legal norms would result in injustice.
This research project aims to investigate and clarify the historical development and current use of
this dictum in the framework of equitable justice. The research starts out by exploring the historical
origins of equity, charting its progression from medieval England to its inclusion into contemporary
legal systems. The maxim emerges as a concept for equitable intervention, highlighting the necessity
for equitable principles to supplement the limitations of common law remedies.
The maxim recognizes that not all injustices can be sufficiently rectified by the application of
common law rules. There are instances where someone may be harmed or injured, but relief may
not be possible through the common law's accessible legal remedies. In certain situations, equity
enables the court to intervene and award remedies in accordance with standards of justice, fairness,
and conscience.
In order to further explore the many contexts in which this concept is applicable, the research
focuses on specific equitable remedies that courts use to right wrongs when more conventional legal
remedies are insufficient or inappropriate. We will examine cases involving breaches of trust,
unconscionable behavior, and fiduciary duty to show how the maxim supports the court's authority
in providing equitable relief.
The research will also take into account the difficulties courts have in adopting the maxim, such as
how to strike a balance between the certainty and adaptability of equitable remedies. The conflict
between maintaining legal consistency and providing justice on a case-by-case basis, as well as the
possible danger of going too far with equitable intervention, will be discussed.
The research will come to its conclusion regarding the principle of "Equity will not suffer a wrong
without a remedy" as a guiding concept in the law of equity and trust. It will highlight the need to
strike a balance between equitable intervention and the preservation of legal consistency,
reiterating equity's role in upholding fairness, justice, and rectification in a legal environment that
is always changing.
This research study essentially advances knowledge of the fundamental ideas of equity by providing
insights into the dynamic nature of equitable remedies and the critical function they serve in
ensuring that no wrong goes unpunished in the pursuit of justice.
The maxim "Equity shall not suffer a wrong without a remedy" states that, in the absence of
common law, equity will uphold all rights and rectify wrongs. This maxim's basic principle is that

no injustice should go unpunished if it can be corrected by courts of justice, and it serves as the
foundation for the entire equity jurisdiction.
In the fields of trust and equity law, the maxim "Equity will not suffer a wrong without a remedy" is
fundamental. The maxim captures a core idea of the legal system, highlighting the importance of
equity in providing justice, fairness, and sufficient remedies in cases where the current legal system
is insufficient.
The maxim emphasizes the fundamental idea that the judicial system should not accept or permit
injustices to be ignored in the quest for justice. It states that equity can intervene to offer
appropriate remedies when the application of common law remedies proves inadequate or where
strict legal standards would lead to injustice.
This maxim's main objective is to operate as a guideline, reminding judges, attorneys, and the legal
community at large of the value of equity in righting wrongs. It highlights the fact that the legal
system is not limited to a rigid, one-size-fits-all methodology and that it must be flexible in order to
handle particular and complicated circumstances for which common law remedies might not be
sufficient.
The maxim's application encompasses many facets of the legal system, with an emphasis on trust
and equity law in particular. Because equity law offers more individualized and flexible remedies
than common law, it occasionally enhances and modifies the latter. It can be used in situations
where common law remedies are insufficient to rectify a specific wrong, including in matters
involving fiduciary duty, unconscionable behaviour, and breaches of trust. The maxim also applies
to fairness, conscience, and justice issues, emphasizing the need for equity in guaranteeing that legal
decisions are both just and equitable in addition to being legally correct.
"Ubi Jus Ibi Remedium" is the Latin phrase for this maxim, meaning "where there is a right,
there is a remedy". According to the maxim, when the common law grants a right, it also provides a
remedy for when that right is violated. Remember that this rule only applies in cases where the
court has jurisdiction over both the right and the remedy.
Specific performance and injunction are further forms of remedies that are accessible under the
Law of Equity. The Ashby Vs. White case, which centers on the idea that a person is entitled to a
remedy if they are granted a right, deals with the situation where a qualified voter was denied the
opportunity to cast their ballot and filed a lawsuit against the returning officer.[1]
The maxim serves as a reminder of the inherent adaptability of equitable principles and their ability
to offer relief and remedies that are consistent with the concepts of justice and fairness in the context
of equity and trust law. It eventually aids in the pursuit of fair results in the legal system by
directing the courts' ability to step in when common law remedies are insufficient.

Historical Development Of Equity

Throughout several centuries, equity has undergone a rich and complicated historical development
that has had a major impact on the current legal frameworks in many common-law nations. As a
reaction to the common law's alleged shortcomings in providing justice and fairness, equity
developed.
England's medieval past is where equity first emerged. Common law was the dominant legal system
in place at the time, and it was applied by the king's courts. But the common law was frequently
criticized for being overly formalistic and strict, which could occasionally result in injustices.
The Court of Chancery, sometimes referred to as the Chancery Courts, was established as a remedy
for these deficiencies. The Lord Chancellor, a prominent member of the clergy, presided over these
tribunals, which were separate from common law courts. The Chancery Courts initiated the
creation of an equitable principles body of rules and guidelines.
These principles sought to uphold justice, equity, and conscience in situations where the rigorous
application of common law norms would not accomplish these ends. Among equity's most
important accomplishments was the development of fresh remedies that common law did not
provide. These remedies gave the Chancery Courts the power to compel parties to take actionï¿½or
not take action in order to accomplish a fair result. Examples of these remedies are specific
performance and injunctions.
The identification and enforcement of trusts and the fiduciary obligations that go along with them
were greatly aided by equity. A key component of contemporary equity and trust law is the idea of a
trustee keeping and overseeing assets for the benefit of another party.
The Chancery Courts developed a collection of precedent and equity-specific doctrines over time.
The Chancery Courts adopted these equitable theories and maxims as essential components of their
decision-making process. The English Common Law and Chancery Courts were combined in the
19th century by the Judicature Acts. The purpose of this merger was to reduce the burden of having
two distinct court systems and to expedite legal proceedings. Therefore, the same courts were to
administer equity and law.
The common law tradition is followed by the legal systems of many nations, including the United
States, which have been influenced significantly by the ideas and remedies created in equity. Where
common law remedies may not be adequate, these equitable principles continue to direct the
resolution of situations. The focus that equity places on adaptability, justice, and fairness is its

ongoing legacy. Equity still enables courts to adjust and offer remedies that consider the particulars
of each case.[2]
Therefore, the progress of the legal system's dedication to achieving justice and fairness is reflected
in the historical development of equity. It has influenced contemporary legal systems for a long time
and still has an impact on how the law handles complicated and singular circumstances.
Equity As A Concept For Equitable Intervention

As a philosophical and legal notion, equity provides a way to step in where the implementation of
common law remedies could result in injustice or is insufficient. This idea has a number of
important components:[3]
 Flexibility and Discretion: These two qualities define equity. It enables courts to
customize remedies to fit each case's particular facts. This adaptability is especially crucial in
situations when common law remedies would be excessively strict or unsuitable.
 Fairness and Conscience: The concepts of equity and justice are intertwined. It aims to
produce just results by taking into account the moral and ethical implications of a case in
addition to the rigorous application of the law. Equity intervenes to make amends where a
rigid application of the law would be unfair.
 Equity Is Essential in Stopping Unconscionable Behaviour: Equity can offer

remedies to stop unfair behavior if one party is taking unfair advantage of another by
abusing a contractual or fiduciary relationship.
 Specific Remedies: The capacity of equity to offer particular remedies is one of its defining
characteristics. This means that equity can order parties to perform contractual
commitments (particular performance) or refrain from detrimental activities (injunctions)
instead of awarding damages, as common law courts frequently do.
 "Equity will not suffer a wrong without a remedy", is a well-known maxim that highlights
how important equity is to the legal system. It acts as a lighthouse pointing out when equity
intervention is necessary in different circumstances.
o Correcting Common Law's Inadequacies: This dictum serves as a reminder to

judges and attorneys alike that not all wrongs can be sufficiently made whole by
common law remedies. In complex, unusual, or ethically delicate cases, common law
may not be the best option. Equity is needed to close these disparities and offer
appropriate solutions.

o Cases Needing Moral and Ethical Considerations: This maxim emphasizes the
necessity for courts to take moral and ethical factors into account when applying
common law principles strictly, as this could result in injustice or unfairness. Judges
are able to take these factors into account because of equity.
o Flexibility in the Legal System: This maxim promotes the flexibility and
adaptability of the legal system. It acknowledges that the law ought to be a flexible
framework that can adapt to changing cultural norms and values rather than a strict
and inflexible one.
o Ensuring Justice: The maxim primarily contributes to the main objective of

guaranteeing justice. It serves as a reminder that the ultimate goal of the legal system
is to achieve just outcomes, and equity is a vital tool for accomplishing this goal.
As such, equity provides specific remedies, justice, and flexibility, and it functions as a notion for
equitable intervention. The maxim emphasizes the need for equality by pointing out the
shortcomings of common law, the importance of taking ethical considerations into account, and the
main objective of obtaining justice through the legal system.
The Need For Equitable Remedies

Equitable remedies are necessary in the framework of equity and trust law when specific inequities,
unfairness, or special situations cannot be adequately addressed by common law remedies. When
strict application of common law standards is not enough, equitable remedies give courts the means
to attain justice, fairness, and conscience.
 Legal Remedies' Inadequacies: Common law remedies are intended to compensate for
damages with money. Nevertheless, there are instances in which monetary damages by
themselves are insufficient to completely right a mistake or fairly recompense a party for a
loss. Equitable remedies are required in certain situations in order to offer more suitable
treatment.
 Specific Performance: Rather than only providing monetary damages, equitable remedies
such as specific performance in contract law force a party to carry out their contractual
responsibilities. When the contract's subject matter is unique and money cannot fairly
recompense the harmed party, this remedy is crucial.
 Injunctions: Equity permits the issuing of injunctions to stop specific behaviors or

activities. Common law remedies, for example, might not be effective quickly enough when
someone threatens to violate a restrictive covenant. To stop the infringement and defend the

rights of the party requesting equity, an injunction may be requested.
 Breach of Fiduciary obligation: Equitable remedies are frequently needed in cases

involving the breach of a fiduciary obligation, such as those involving trustees or corporate
directors. Equity makes sure fiduciaries operate in the beneficiaries' best interests, and in the
event that they don't, equity can offer remedies to safeguard the beneficiaries.
 Rectifying Unconscionable Behaviour: When one person unfairly takes advantage of

another, equity steps in to stop the behaviour. It offers solutions to stop this kind of behaviour
and bring justice back.[5]
The following are a few notable case laws that highlight the necessity of equitable remedies:
 Fry Vs. Lane (1888)[6]: When the defendant tried to sell his property to a third party after
making a promise to the plaintiff, specific performance was awarded as an equitable remedy.
This was a special case where the damages remedies under common law would not have
worked.
 Blake Vs. Attorney General (2000)[7]: Equity was a key factor in resolving the
fiduciary responsibility breach in this historic case. In breach of his fiduciary duties, the
defendant, a former MI6 agent, published a book about his experiences without receiving
clearance. Equity stepped in to stop him from making money off of his duty violation.
 Pinnel's Case (1602)[8]: This case serves as an example of why equity must step in when
there is a change to an already-existing legal requirement. Equity's function in preserving
justice is demonstrated by the court's ruling that a party should be held to their agreement if
they accept a lesser amount as a complete settlement of a debt.
 Lumley v. Wagner (1852)[9]: It is a well-known instance of equity employing injunctions

to stop unethical behaviour. Despite her agreement not to perform for another theatre, the
defendant, a singer, was prohibited from doing so.
These seminal instances underscore the urgent necessity of equitable remedies in a number of
situations when sufficient relief, justice, and fairness for the parties would not have been achieved
through common law remedies. They provide as examples of how equity can be flexible and
adaptable to handle intricate and particular legal issues.
Challenges In Applying The Maxim

Although the maxim "Equity will not suffer a wrong without a remedy" is essential to the study of

trust and equity law, there are difficulties in putting it into practice. The conflict between the need
for legal consistency and justice ideals is the root of these difficulties. The following are some
difficulties in putting this guideline into practice:[10]
 Maintaining Legal Uniformity while Ensuring Case-Specific Justice:

In order to attain justice, equity seeks to offer case-specific remedies that may depart from
accepted legal principles. On the other hand, this latitude may result in inconsistent legal
rulings. The need for a uniform legal system and the demand for personalized justice must be
balanced by courts. It might be difficult to decide when and how to deploy equitable remedies
without compromising the predictability of the law.
 Possibility of Overreach:
Because equitable remedies are discretionary, courts may occasionally overreach. A judge's
personal opinions or prejudices run the risk of influencing their impartial judgments. In
order to guarantee the prudent application of equitable remedies, legal systems need to
incorporate checks and balances. This covers the need for strong legal reasoning as well as
the concepts of equality and fairness.
 Contravention of Statutory Law:

Legal precedents, statutory legislation, and regulations may clash with equitable principles.
In cases where equity and legal principles conflict, courts may have to make difficult
decisions. Courts ought to carefully analyze how equity and statute law interact and look for
methods to make them more harmonious. Statutory law may take precedence in certain
situations, while equity may serve as the driving principle in others.
 Possibility of Complexity and Delay:

A more involved and drawn-out judicial procedure may be necessary for equitable remedies
like specific performance and injunctions than for monetary damages awards. Case
resolution may take longer when there are requirements for proof, hearings, and injunctions.
The advantages of equity must be weighed against any potential delays and complications
that it may cause for the courts. It's critical to strike a balance between providing prompt
justice and giving the case careful thought.
 Equitable Precedent Consistency:

Equity is based on a collection of established practices and theories that may change over
time. It might be difficult to guarantee consistency in the implementation of equitable
principles since judges may have diverse interpretations of prior decisions. In order to
preserve uniformity in the application of equity, it is imperative that judges have enough
training and are knowledgeable about equitable principles and precedents.

 A possibility of unpredictability:
Because equity is discretionary, it can be impossible for parties to a legal dispute to
determine how it will turn out. To lessen uncertainty, courts ought to explain their equitable
rulings in a comprehensible and open manner. This makes it clearer to all parties why equity
was used in a particular situation.
The maxim, "Equity will not suffer a wrong without a remedy" emphasizes how crucial equitable
involvement is to achieving justice, although putting it into practice is not without difficulties. It is
still difficult for legal systems and judges to strike a balance between the demands of uniformity and
predictability in the law and the requirements of flexibility, justice, and conscience. It takes
considerable thought, firmly defined legal precepts, and efficient judicial supervision to address
these issues.
Conclusion
In conclusion, the maxim "equity will not suffer a wrong without a remedy" highlights the critical
role that equity plays in guaranteeing justice, fairness, and suitable remedies. It is a core idea in the
fields of equity and trust law. It acts as a beacon for the legal community, a reminder that injustices
should never stand up in court if there is a way to remedy them.
Equity's historical evolution, which started in medieval England and addressed common law's
shortcomings, reflects the legal system's dedication to change, administer justice, and right wrongs.
(ii) Equity follows the law.

Equity Follows The Law
This maxim means that Equity is not a body of jurisprudence acting contrary to law, but rather a
supplement to law. The Court of Chancery never claimed to override the Courts of Common
Law. Maitland correctly observes that “Every jot and every title of Law was to be obeyed but when
all this had been done, something might yet be needful, something that Equity would require” and
that was added by Equity.
This maxim is also expressed as “aequitas sequitur legem”, which means that equity will not allow a
remedy that is contrary to the law. This maxims lays down that equity supplements law and does
not supersede it. The discretion of the court is governed by law and equity which are subservient to
one another. Wherever the law can be followed, it must be followed. In the cases where the law does
not apply specifically, this maxim suffers limitation. But in modern-day England and Wales, the law
follows equity. Section 49(1) of the Senior Courts Act,1981 clearly specifies that in case there is a
conflict between the rule of law and equity, equity shall prevail.
Storey in elucidation of the above maxim explained that “where a rule either of the Common Law
or the Statute Law, is direct, and governs the case with all its circumstances on a particular point,

the Equity Court is as much bound by it as a Court of Law, and can as little justify a departure from
it.”
This maxim is understood in the following two respects:
 Equity adopts and follows the rules of law in all cases where applicable.
 Equity follows the analogies of Common Law.
Application Of Maxim
The maxims has two-fold application to the subject-matter. The subject matter may be–
 A legal estate, right or interest or,
 An Equitable estate, right or interest.
As regards a legal estate, right or interest, Equity is strictly bound by the rules of law and the court
of Chancery never claimed to override the Courts of Common law. Equity in these cases obeyed the
law even if the legal rules in question were hard or unfair.
Maitland says, "We ought not to think of common law and equity as of two rival
systems."[22] "Equity had come not to destroy the law, but to fulfil it. Every jot and every title of law
was to be obeyed, but when all this had been done yet something might be needful, something that
equity would require."[23]The goal of law and equity was the same but due to historical reasons they
chose a different path. Equity respected every word of law and every right at law but where the law
was defective, in those cases, equity provides equitable right and remedies.
In modern-day England and Wales, this maxim no longer applies; as per section 49(1) of the Senior
Courts Act 1981, the law follows equity instead:
Subject to the provisions of this or any other Act, every court exercising jurisdiction in England or
Wales in any civil cause or matter shall continue to administer law and equity on the basis that,
wherever there is any conflict or variance between the rules of equity and the rules of the common
law with reference to the same matter, the rules of equity shall prevail. [24]
The Court of Chancery never claimed to override the courts of common law. Story states "where a
rule, either of the common or the statute law is direct, and governs the case with all its
circumstances, or the particular point, a court of equity is as much bound by it as a court of law,
and can as little justify a departure from it."[20] According to Edmund Henry Turner Snell, "It is only
when there is some important circumstance disregarded by the common law rules that equity
interferes."[21] Cardozo wrote in his dissent in Graf v. Hope Building Corporation, 254 N.Y 1 at 9
(1930), "Equity works as a supplement for law and does not supersede the prevailing law.
Illustration
The rule of Common Law that where a man died intestate, leaving sons and daughters and
possessed of a free simple estate, the eldest son was entitled to the whole of the land, was

undoubtedly most unfair to the younger sons and the daughters, but Equity granted them no relief.
But if the eldest son had persuaded his father not to make a will and had promised to share the
property with his brothers and sisters, Equity would have compelled him to fulfill his promise. It
would have been against conscience to allow him to keep the benefit of the legal estate which he only
obtained by reason of his promise. So, while recognising the legal rule and giving full effect to it,
Equity said that this did not conclude the matter, the circumstances of the son’s promise must also be
taken into consideration, and he must be a trustee of the and for himself and his brothers and
sisters.
Limitation
The maxim applies in both the cases of legal estate and equitable estate generally, but there are
certain cases of exceptions to the general application of the maxim. In exceptional cases, where an
exact legal rule was neither directly applicable nor capable of being extended on principles of
analogy. Equity processed to administer justice on principles and rules of its own.
(iii) Where equities are equal, the law shall

prevail
Equity will provide no specific remedies where the parties' causes are to be seen to be equal, or
where neither has been wronged.
The significance of this maxim is that applicants to the chancellors often did so because of the
formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and
legislature, as lawmakers, through the limits of the substantive law they had created, thus
inculcated a certain status quo that affected private conduct, and private ordering of disputes.
Equity could alter that status quo, ignoring the clearly imposed limits of legal relief, or legal
defences. But courts applying equity are reluctant to do so. This maxim reflects this. If the law
firmly denied a cause of action or suggested equities between the parties were as a matter of policy
equal, equity would provide no relief; if the law did provide relief, then the applicant would be
obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously
mentioned "equity follows the law.
Maxim: Where equities are equal law must prevail. This maxim means that “when the
conflicting interests of two or more parties are supported by equitable pleas of equal value, equity
being unable to prefer one to the other would allow the conflicting equities to cancel out and leave
law to take its course”. It means the parties will litigate in a Court of Law where the only legal estate
alone will apply. Where the defendant has an equal claim to the protection of a Court of Equity for
his title as the plaintiff has to the assistance of the Court to assert his title, the Court will not
interpose (introduce, interrupt) on either side, but will leave the matter as it stands. The equity is
equal between persons who have been equally innocent and equally diligent. This doctrine applies,

strictly in all cases, where the title of the plaintiff seeking relief is equitable. The purchaser, however,
in all cases, must hold a legal title in order to give him full protection of his defence. He must have
paid the purchase money before notice, otherwise he will not be protected.
A legal right is enforceable against any person who takes the property, whether he has notice of it or
not.
For instance, if A sells to C land, over which B has a right of way, C takes the land subject to B’s
right, although he was ignorant of the right at the time of purchase. But the rule is different as
regards equitable rights. It is well established rule that a purchase for valuable consideration
without notice of prior equitable right, obtaining the legal estate at the time of his purchase, is
entitled to priority in equity as well as at law. In such a case equity follows the law, the purchaser’s
conscience not being in any was affected by the equity.
Where one thing follows two claimants on the base of equal equity, equity shall follow the law and
legal right shall be preceded. Law provides relief to those who claims on the base of legal right.
According to this maxim if legal right is equal to equitable rights, legal right shall remain there. It
means the person bearing legal right shall precede however equity is under law.
Application: This maxim has certain applications such as:
1. Dispute in transfer of property: When both the contestants are equally entitled to obtain
help from courts of equity (because their equities are equal), the party who has law in his favour will
succeed.
For example, A agrees with B to sell his property for Rs. 5,000/-. Therefore in breach of the above
agreement, A sells the property to C for B Rs. 6,000/- and making a document hands over the
possession of the property to C. As a result of the agreement B did not get any legal interest in the
property. B has only an equitable interest in his favour binding A conscience. C, on the contrary, as
a result of his agreement with A, gets the legal interest and has executed a document and obtained
possession of the property. B’s interest is an equitable with law in his favour. Naturally, therefore, in
a conflict between B and C, C has superior interest as compared to that of B. Thus equitable interest
is not as strong as a legal interest and so, according to the maxim the law shall prevail.
It may be noted that the doctrine of Election, Marshalling, and Set Off are based on the maxim
under discussion.
2. Tacking (application in Pakistan): There are three different mortgages executed in

respect of the same property to X, Y, & Z respectively. The mortgagor executed on different date and
non-of the parties have the notice of the prior mortgage. In such as case the first mortgagee has to
legal estate. According to maxim where equities are equal the first in time shall prevail, the
mortgages rank in order of time. If C, by paying off A’s mortgage, obtains the legal estate, i.e.,
obtains conveyance of A’s estate and an assignment of his securities, he is entitled to precedence
over B and also to the first mortgage. But in case the first mortgagee has not the legal estate, the

third mortgagee acquires not property over the second mortgagee even if he made the payment to
the first mortgagee.
3. In contradiction of legal and equitable right: This maxim is used where equitable and
legal rights conflict and precedence go to legal right. Equities must be equal by there should be
conflict of legal and equitable rights. It does not apply where priority of time in case of equity is
determinant factor in relief.
4. Transfer of property cases: S. 78 of Transfer of Property Act is based on this maxim. It

enacts that “where though the fraud, misrepresentation, or gross neglect of a prior mortgagee,
another person has been induced to advance money on the security of the mortgaged property, the
prior mortgagee shall be postponed to the subsequent mortgagee.”
S. 53 of Transfer of Property Act is also based upon this maxim. It enacts that “every transfer of
immovable property made with intent to defeat or delay the creditors of the transferor shall be void-
able at the option of any creditor so defeated or delayed.”
It is clear in law that fraudulent transfer of property with intent to defraud or delay is void-able.
X being heavily indebted tries to dispose of his immovable property and converts it into cash in
order to defeat his creditors. Y being aware of all these facts, purchased such property from X. The
sale is void-able at the option of the creditors so defeated. If however, Y is not aware of the above
circumstances and purchases the property in good faith, the sale would not be void-able. But if Y
takes the property by way of gift, without paying any consideration for the same, the sale shall be
void-able at the instance of the creditors regardless of the fact whether Y had or had not any notice
of the intention of X to defraud his creditors.
Justice Lord Selborne held in famous case Ewing v Orr Ewing that “courts of equity are always
supposed courts of conscience in England.” They act in personam and not in rem. In exercise of this
jurisdiction they put pressure for the performance of agreements and securities even they do not
come under their jurisdiction.
Exception: This maxim has two exceptions as follows:
1. Prior equitable and subsequent legal right: Where interest in legal property comes
subsequently, cannot attain precedence. Person, who acquires equitable right in the presence of
legal right, he procures breach of duty.
In case of negligence or fraud legal property extinct priority right if equitable property comes
subsequently.
2. Equal equities without legal right: Where there are equal equities but legal right lacks,
this maxim shall not apply.

4. Where equities are equal, the first in time

shall prevail.
The legal maxim “Where equities are equal, the first in time shall prevail” is a fundamental principle
in equity law. This maxim is often applied in situations where there are competing equitable
interests, and it helps determine which interest should take precedence. Let’s delve into this principle
in detail, exploring its origins, applications, and implications.
Origins and Historical Context

The maxim originates from the English Court of Chancery, which developed principles of equity to
mitigate the rigidity and harshness of common law. Equity, as a body of law, aims to achieve
fairness and justice, often providing remedies that common law could not. The principle “first in
time shall prevail” reflects the equitable doctrine that when two parties have equal claims, the one
who established their claim first will have priority.
Legal and Equitable Interests

To understand this maxim, it’s essential to distinguish between legal and equitable interests:
 Legal Interest: This is an interest in property recognized and enforceable by common law
courts. It includes ownership rights, mortgages, and leases.
 Equitable Interest: This is an interest recognized by the Court of Chancery, such as the
interest of a beneficiary under a trust. Equitable interests are enforceable in equity courts.
General Rule and Application

The general rule is that interests take effect in the order of their creation. When two equitable
interests conflict, the one created first will generally prevail. This rule applies in various contexts,
including property law, trusts, and mortgages.
Example
Consider a scenario where A enters into a contract to sell his house to B and later enters into a
similar contract with C. Both B and C have equitable interests in the property. According to the
maxim, B’s interest will prevail because it was created first.
Exceptions and Limitations

While the maxim provides a clear rule, there are exceptions and limitations:
1. Bona Fide Purchaser for Value Without Notice: If a legal interest is acquired by a bona fide
purchaser for value without notice of the prior equitable interest, the legal interest will
prevail. This exception protects innocent purchasers who acquire property without
knowledge of existing equitable claims.

2. Equitable Interests vs. Legal Interests: An equitable interest may be defeated by a subsequent
legal interest if the legal interest holder is a bona fide purchaser without notice of the
equitable interest.
Application in Modern Law

The principle “first in time shall prevail” continues to be relevant in modern legal systems,
particularly in property law and the administration of trusts. Courts apply this maxim to resolve
disputes involving competing claims to property or other assets.
Property Law
In property law, the maxim helps determine priority among competing interests, such as
mortgages, liens, and leases. For example, if two mortgages are placed on the same property, the
first mortgage will generally have priority over the second.
Trusts
In the context of trusts, the maxim ensures that beneficiaries’ interests are protected in the order
they were created. If a trustee breaches their duty and creates conflicting interests, the first interest
will typically prevail.
Case Law
Several landmark cases illustrate the application of this maxim:
1. Rice v. Rice (1853): This case established that where two equitable interests conflict, the first
in time will prevail unless the later interest holder is a bona fide purchaser for value without
notice.
2. Pilcher v. Rawlins (1872): This case reinforced the principle that a bona fide purchaser for
value without notice of an equitable interest will take priority over the earlier equitable
interest.
Rights and Liabilities

The maxim also affects the rights and liabilities of parties involved in equitable disputes:
 Rights of the First Interest Holder: The party whose interest was created first has the right to
enforce their claim over subsequent interests.
 Liabilities of Subsequent Interest Holders: Parties who acquire interests later must respect
the prior interest, unless they qualify as bona fide purchasers without notice.
Practical Implications
Understanding this maxim is crucial for legal practitioners, particularly those involved in property
transactions, trust administration, and equitable remedies. It guides the drafting of contracts, the
creation of trusts, and the resolution of disputes.
GENERAL RULE:

Under general rule, the interest takes effect in order of their creation. FOR INSTANCE, whose
rights are created first will receive priority in the court of equity. However, an equitable interest
might be defeated by a legal interest, even though it has been created prior to the legal interest.
For example, if the purchaser of a legal interest is bona fide and without notice of any equitable
interest, then the equities are equal and legal interest prevails.
EXPLANATION:
Where equities are equal , the first in time shall prevail – In the absence of a legal estate in the
matter and the contest is among the equitable estate only, the rule is that the person whose equity
attached to the property first will be entitled to priority over other or others e.g., if A enters into a
contract for the sale of his house with B and then with C, the interest of B and C both being
equitable, B will have priority over C because his attached to the property first.
APPLICATION:
1:This maxim operates where there are two or more competing interests, provided both the
interests are equitable.
2: When two parties each have a right to possess something, then the one who acquired an
interest first should prevail in equity
ILLUSTRATION:For example, a man advertises a small boat for sale in the classified section of
the newspaper.The first person to see the ad offers him $20 less than the asking price, but the man
accepts it.That person says he or she will pick up the boat and pay for it on Saturday. Meanwhile
anotherperson comes by, offers the man more money, and the man takes it. Who owns the boat?
Contractlaw and equity agree that the first buyer gets the boat, and the second buyer gets his or
hermoney back.

This maxim is meant for the two comparative equitable estates with time.Time will ha
vepreference. If one person gets his equitable interest before the notice of the other,he
willdefinitely have priority because his equity in former point of time that becomes his privilege
Conclusion
The maxim “Where equities are equal, the first in time shall prevail” embodies a fundamental
principle of fairness in equity law. By prioritizing the first-created interest, it ensures that parties’
rights are respected in the order they were established. While exceptions exist, the maxim provides a
clear and consistent rule for resolving competing equitable claims. Its continued relevance in
modern law underscores its importance as a cornerstone of equitable jurisprudence.
(v) He who seeks equity, must do equity

HE WHO SEEKS EQUITY MUST DO EQUITY: this maxim means that any person who comes
to the court of equity to ask for a remedy must be willing to submit to that which is required to do.
The submission here refers to the person’s future conduct and not to the past.
Application of the Maxim

a. Doctrine of Marshalling: under equity, a person who has several means of satisfying his
credit shall not be allowed to prejudice another whose credit can only be satisfied from one. This
principle is applied where there is lending or property or mortgage.
By way of illustration: where A is entitled to satisfy his credit from two properties X and Y, and
B is entitled to satisfy his own credit from property Y only, under equity, A would be required to
proceed his satisfaction with property X while he leaves property Y for B to start collecting from.
Under this setting, A has been required to do equity by being fair to a co-creditor in respect of one
property, so that he shall not go with nothing. Where however, A refuses to leave property Y for B,
equity will subrogate A’s interest with that of B and entitle B to start satisfying his credit from
property X which is usually of higher means.
Exception to the Application of Marshalling

Doctrine of marshalling will not apply where there is a third party encumbracer. This may arise
where there is a third person who has an interest in the property or means from which parties are
to satisfy their credit. In such a case, the court will devise other means to satisfy the parties.
b. Doctrine of Consolidation: where a person creates a charge or mortgage in respect of two

distinct properties, the transaction is said to be consolidated. The rule therefore is that one of the
properties in respect of which charge or mortgage is created cannot be redeemed to the exclusion of
the other. In other words, both properties must be redeemed in order for the transaction to be
deemed discharged.
By way of illustration: A mortgaged his property X and Y for a loan of two million naira, A
should not be heard to pay one million naira in redemption of property X. the two million naira
payment must be completed which entitles him to redeem X and Y property at once. Where A seeks
to redeem a consolidated transaction, he must be willing to do equity by redeeming all so
consolidated. The reason for this rule seems to be with respect of the value of the properties so
consolidated, where one has a greater value than the other, considering the fact that a mortgaged
property should be greater in value to the amount loaned.
Limitations to the Doctrine of Consolidation

The doctrine of consolidation has been abolished by section 17 of the property and
Conveyancing Act and section 115 of Property and Conveyancing Law of Western
Region. Therefore, now, consolidated mortgaged properties can be redeemed to the exclusion of
the other.
Where the parties expressly agree that a consolidated mortgaged property can be redeemed to the
exclusion of the other, the law shall give effect to their intention.
c. Doctrine of Election: this arises where a Donor makes a gift of his property to A and by the
same instrument, gifts A’s property to B. under this setting, A has been put to election. He may elect
either against or under the instrument. If he accepts the gift and surrenders his to B, he has elected
under the instrument. Where he rejects the gift or refuses to surrender his to B, he has elected
against the instrument. He may however, remedy this by paying B the value of that his property so
gifted by the Donor.
For there to exist an election:
There must be a grant by the donor
A’s property so gifted to B must be belonging to A
The gift must be by the same instrument
The grant must be unequivocal
d. Illegal Loans: by the virtue of the Money Lenders Act of 1990, a money lender must be
registered, otherwise he has no remedy. However, in LODGE V NATIONAL UNION
INVESTMENT CO, the court held that a mortgagor who collected loan from an unregistered
money lender must do equity by paying off the mortgage debt before he can redeem his property.
Understanding the Maxim: “He Who Seeks Equity Must Do Equity”

The maxim “He who seeks equity must do equity” is a cornerstone of equity law. It emphasizes the
principle that anyone seeking equitable relief must themselves act equitably. This principle ensures
fairness and justice in legal proceedings, requiring that those who ask for fairness must also be
willing to offer it.
Historical Background
Equity originated to address the rigidity and limitations of common law. Common law courts often
provided remedies that were too rigid or inadequate for certain cases. Equity courts, on the other
hand, offered more flexible remedies, such as injunctions, specific performance, and rescission. The

maxim “He who seeks equity must do equity” emerged to ensure that those who sought these flexible
remedies were themselves acting fairly.
Key Elements of the Maxim

1. Fairness and Justice: The maxim ensures that the plaintiff’s conduct is fair and just. If a
plaintiff seeks an equitable remedy, they must demonstrate that they have acted equitably in
their dealings.
2. Mutual Obligations: It emphasizes mutual obligations. If a party seeks to enforce an

equitable right, they must also be prepared to fulfill their own obligations.
3. Preventing Unjust Enrichment: The maxim prevents a party from benefiting unfairly at
the expense of another. It ensures that equity is not used as a tool for unjust enrichment.
Examples to Illustrate the Maxim

1. Contract Enforcement: Suppose Party A and Party B enter into a contract where Party A
agrees to sell a piece of land to Party B. If Party B seeks specific performance (an equitable
remedy) to compel Party A to transfer the land, Party B must show that they have fulfilled
their own obligations under the contract, such as paying the agreed price.
2. Injunctions: Imagine a scenario where a homeowner seeks an injunction to prevent a

neighbor from building a structure that violates a property agreement. The homeowner must
demonstrate that they have not violated any terms of the agreement themselves. If the
homeowner has also breached the agreement, the court may deny the injunction.
3. Rescission of Contract: If a party seeks to rescind (cancel) a contract due to

misrepresentation, they must be willing to return any benefits they received under the
contract. For example, if a buyer seeks to rescind a contract for the purchase of a car due to
the seller’s misrepresentation, the buyer must return the car to the seller.
Application in Modern Law

The maxim continues to play a crucial role in modern equity law. Courts apply this principle to
ensure that parties seeking equitable relief are acting fairly and justly. Here are a few modern
applications:
1. Family Law: In divorce proceedings, a spouse seeking equitable distribution of assets must
demonstrate that they have acted fairly in disclosing their financial information. If a spouse
hides assets, the court may deny their request for equitable distribution.
2. Trusts and Estates: Beneficiaries seeking equitable relief in trust and estate matters must
show that they have acted in good faith. For example, a beneficiary seeking to remove a
trustee for breach of fiduciary duty must demonstrate that they have not engaged in any
misconduct themselves.

3. Employment Law: Employees seeking equitable remedies, such as reinstatement after
wrongful termination, must show that they have not engaged in any misconduct that would
justify their termination.
Case Law Examples

1. Chappell v. Times Newspapers Ltd (1975): In this case, employees sought an injunction
to prevent their employer from dismissing them. The court held that the employees must
demonstrate that they had acted equitably by not participating in any misconduct that would
justify their dismissal.
2. Coatsworth v. Johnson (1886): A tenant sought specific performance to compel the

landlord to grant a lease. The court denied the remedy because the tenant had not fulfilled
their own obligations under the lease agreement, such as paying rent.
3. D & C Builders Ltd v. Rees (1966): A builder sought to enforce a debt against a client
who had paid less than the agreed amount. The court held that the client could not rely on
equitable defenses because they had acted unfairly by taking advantage of the builder’s
financial difficulties.
Practical Implications
1. Legal Strategy: Lawyers must ensure that their clients have acted equitably before seeking
equitable remedies. This involves advising clients to fulfill their obligations and avoid any
conduct that could be seen as unfair.
2. Negotiations: Parties in negotiations should be aware that their conduct can impact their
ability to seek equitable relief. Acting fairly and fulfilling obligations can strengthen their
position if they later seek equitable remedies.
3. Dispute Resolution: In dispute resolution, parties should consider the principle of mutual
obligations. Demonstrating a willingness to act fairly can facilitate settlements and avoid
prolonged litigation.
Conclusion
The maxim “He who seeks equity must do equity” is a fundamental principle that ensures fairness
and justice in equity law. It requires parties seeking equitable relief to act equitably themselves,
emphasizing mutual obligations and preventing unjust enrichment. This principle continues to play
a crucial role in modern law, guiding courts in their decisions and ensuring that equity remains a
tool for achieving justice.
By understanding and applying this maxim, individuals and legal practitioners can navigate the
complexities of equity law and ensure that their actions align with the principles of fairness and
justice.

(vi) He who comes to equity, must come with

clean hands.
This implies that he who seeks to enforce an action in equity must have clean hands in respect of that
transaction. Clean hands here imply that his conduct in respect of that transaction must be
unimpeachable.
The conduct in question here is the parties’ past conduct in respect of the particular transaction
which brings them to court. The parties’ personality or general good and bad conduct is immaterial.

a. Illegal contract: equity does not intervene when the subject matter of the suit emanate from an
illegal transaction. In EVEREST V WILLIAMS (THE HIGHWAY MAN CASE), the parties
brought question as to the fair share of their business transaction which was armed robbery. The
court struck out the case for being impertinent, arrested the parties and awarded cost against the
attorney.
b. Unclean Business: where the subject matter of a suit is an unclean business, the court of equity
will not intervene.
c. Infant Misrepresentation: an infant who misrepresented herself to be of age and receives

money from her trustee shall not be allowed to plead that she was an infant at that time in order to
claim the money again. Overton V Bannister
d. Fraud: Equity does not intervene where there is element of fraud implicated against the
plaintiff.
e. Breach of Restrictive Covenant in a Lease: a person who is in breach of covenant in a lease

shall not be allowed in equity to succeed to succeed in an action against his landlord.
Limitations to the application of the Maxim

a. Public Policy: equity will intervene where public policy is at stake, even though a party’s hands
are unclean.
b. General Conduct: equity is not interested in the general conduct of the parties.
The maxim is sometimes expressed in another form i.e., “he that hath committed iniquity shall not
have equity”. It means that the person seeking relief from a court of equity, must not himself be
guilty of a conduct (with regard to the same transaction) which would disentitle him to the
assistance of the court. He must be clean, clear of any participation in fraud or similar inequitable
conduct.
The maxim is based on conscience and good faith. While a Court of Equity tries to promote and
enforce justice, good faith, uprightness and fairness on the part of the defendant, it nonetheless,

stringently demands the same from the plaintiff. The plaintiff must concede all equitable rights of
his adversary which grow out of or are inseparable connected with the matter in dispute.
This maxim is applicable both to the defendant as well as to the plaintiff, and the man who seeks to
avail himself of an equitable defense, must stand the test as well as one who appears as plaintiff in a
case.
Application Of The Maxim

Indian Trust Act- The principle has been incorporated in Section 23 of the Indian Trust Act which
provides that the beneficiary cannot successfully sue the trustee to make good the loss to the trust
property due to breach of trust if the beneficiary has, by fraud, induced the trustee to commit a
breach of trust.
Specific Relief Act- Section 22 of the Specific Relief Act lays down that, “Jurisdiction to decree
specific performance is discretionary and the Court is not bound to grant such relief merely because
it is lawful to do so.”
Similarly, Section 25 of the Act denies specific performance of a contract for the sale or letting of
property to the vendor or lessor if he entered into the contract knowing that he had no title to the
property.
Injunction. On the same principle, the Court of Equity will not grant any injunction to a party in
the continuance of a legal wrong even if the defendant is also guilty of legal wrong. Equity will not
grant injunction, for Equity will not adjust difference between wrong-doers. Fraud, illegality and
breach of copyright in works are the instances of immoral or libelous acts for the continuance of
which the Court will not grant injunction.
Relief of rescission or cancellation- These are equitable reliefs provided under Chapters IV and
V of the Specific Relief Act and the conditions being fulfilled, the Court would rescind a contract or
cancel an instrument. But if there is anything unfair or inequitable on the part of the plaintiff, the
relief will not be available to him.
Limitation & Exceptions

This maxim does not apply to every unconscientious or inequitable conduct on the part of the
plaintiff. It is confined to the misconduct in regard to the matter in litigation.
However the maxims does not apply in the following cases:
 Cases Of Public Policy
 Repentance
(vii) Delay defects equity

Equity aids the vigilant and not the indolent.
a. Express Statutory Limitation: where a statute provides for a limitation period by which an
action n respect of a subject matter can be instituted, institution of the action later than the
prescribed time frame renders the action fatal.
b. Limitation by Analogy: where a claim is not expressly covered by a statutory limitation, but
it is analogous (similar) to a claim expressly covered, equity will apply that statutory provision by
analogy.
c. Claims outside Statute: This is where doctrine of laches comes in. Here, the claims are neither
covered expressly by statute nor by analogy. The court of equity still will not avail a person who
brought an action after an unreasonable delay.
For doctrine of laches to apply, it must be shown that the plaintiff had knowledge of the existence of
his right which was inconsistent with that of the defendant, and must have encouraged the
defendant to make expenditures in respect of the subject matter in issue.
Limitations to the Maxim

Delay will not defeat equity where there is a concealed fraud, secret trust and disability.
DELAY DEFEATS EQUITIES
Where an injured party has been slow to demand a remedy for a wrong which he has for a long
time regarded with apparent indifference, the court will decline to give him that remedy on grounds
of public policy. In the famous words of Lord Camden, L.C., “a court of equity has always refused its
aid to stale demands, where a party has slept upon his right and acquiesced for a great length of
time. Nothing can call forth this court into activity, but conscience, good faith and reasonable
diligence; where these are wanting, the court is passive, and does nothing.”
Recognition in Indian subcontinent – This doctrine has no general application to India but
has only a limited scope.
Observing delay and laches as prominent factors while deciding petitions under Article 226 of the
Constitution, the Supreme Court held that the High Court ought not to grant extraordinary relief to
a petitioner who approaches the writ court belatedly or in other words sleeps over his rights for a
considerable period of time. Reversing the High Court's finding which had allowed the writ..
This maxim deals with the defence of laches to equitable relief. Laches means unreasonable delay
such that the granting of relief would produce inequitable results.
Laches is more than mere delay, and instead implies neglect to do what ought to have been done.
Thus, the maxim means that a party who delays in enforcing rights will not be able to seek equitable
relief.

The equitable maxim that delay defeats equity is a general but not an absolute principle. For
instance, the defence of laches does not apply where the plaintiff failed to enforce his rights because
he was not aware of them unless the concept of constructive knowledge applies.
In this sense, the defence of acquiescence to equitable relief is related to the defence of laches. The
defence of acquiescence applies to bar equitable relief where the plaintiff either affirmed or
abandoned his right, thereby implying the plaintiff had knowledge of his right.
It should also be noted that the defence of laches and defence of acquiescence will not apply where
the plaintiff does not in fact suffer any prejudice or change in position as a result of the delay itself.
Furthermore, the maxim of delay defeats equity will not apply where the conduct of the defendant is
such as to render the success of the defence to be inequitable. For example, the defendant does not
herself come to equity with clean hands because the delay was caused by the fraud of the defendant.
Indeed, in considering the defence of laches, the courts of equity consider whether such a delay was
excusable or justifiable. The courts of equity look at factors such as:
 what acts were done during the period of delay;
 the degree of changes and how the parties have been affected during the period of delay; and
 the underlying equitable principle of justice versus injustice.
Most notably, the courts of equity will not consider the defence of laches in a vacuum, but consider it
in the context of all equitable principles and maxims in determining whether to grant relief or not.
(viii) Equality is equity.

Meaning – The maxim expresses the object of both law and equity in order to effectuate a
distribution of property and losses, proportionate to several claims and liabilities of the
parties concerned. Equality therefore means proportionate equality.
Recognition in Indian subcontinent – The maxim have been recognized in India under
various enactments – Contract Act, Section 42, illustrates tenancy in common as regards
devolution of liabilities, Section 43 illustrates that one of a number of joint promisors who has
performed the promise is entitled to compel the other promisors to contribute equally with
him, Sections 69 and 70 illustrate the doctrine of marshalling, Sections 146 and 147 explain
that co-sureties are liable to contribute equally, Under the Transfer of Property Act, Section
56 illustrates the doctrine of marshalling, Section 82 speaks about contribution to mortgage
debt by co-mortgagors, Section 330 of the Succession Act incorporates and illustrates the
principle of rate able distribution of assets explaining that the legacies abate rate ably, (viii)
Under the Indian Trusts Act, Section 27, there is contribution also as between co-trustees,
Section 73 of the Civil Procedure Code, Section 45 of the Transfer of Property Act also
illustrates the incorporation and application of this principle.

under this maxim. Equity seeks to ensure fair and equal share. Equity does not play favourite.

a. Presumption of Tenancy in Common: equity abhors joint tenancy due to the rule of
survivorship (jus accrescendi) which makes properties devolve to co-partners or co-owners instead
of to the party’s estate. As a result, equity presumes tenancy in common in any slightest of its
opportunity.
Instances Where equity Presumes Tenancy in Common
Purchase in Unequal Shares: where property is purchased through monies contributed

unequally, equity presumes a tenancy in common and upon death of any of the contributors, his
interest in the property devolves to his estate. See the case of Lake V Craddock.
Loan on Mortgage: where property is mortgaged in favour of more than on mortgagee, equity
presumes it to be tenancy in common, so that where one of the mortgagees dies, the co mortgagees
does not absorb his interest in the mortgage transaction, rather it goes to the deceased mortgagee’s
estate.
Partnership: where there exist partnership, equity presumes tenancy in common, that upon the
death of any partner, his interest devolves to his estate and not be absorbed by the co-partners.
Severance of Joint Tenancy: where a joint tenancy is severed, equity presumes tenancy in
common in order to avoid the incidence of survivorship. Joint tenancy may be severed by alienation
inter vivos, surrender, merger, forfeiture, etc.
b. Equal Division: Where a property is to be shared and there is no prescribed basis for its
division, equity comes in and shares it equally. See Jones V Maynard.
Failure of Vestment: where property has been shared but due to some reasons (for eg. death of a
party), a share refuses to vest; equity will share his portion equally if there is need for it to be shared
again.
Husband and Wives: upon dissolution of marriage between a husband and wife, equity shares
their property amongst them equally if there is no predetermined mode of share between them.
Exception to the Maxim

Where husband and wife operate a joint account or business, this is clearly a joint tenancy. On the
death of any spouse, the rule of survivorship will apply so that the surviving spouse absorbs the
whole interest.

(ix) Equity looks to the intent, rather than to

form
while equity is interested in the substance, common law is interested in the form.

a. Contractual Obligation: At common law, time is of essence. At equity however, time is
generally not of essence. Where the time for performance of contract has passed, equity can still
order for specific performance. This is because; the intention of the parties was for the contract to be
performed.
b. Mortgage: equity allows a mortgagor to redeem his mortgaged property even after the
redemption date has passed. This is because; the parties did not intend the transaction to be a sale
but a mortgage.
Limitation of the Maxim

Equity regards time to be of essence in the following cases:
a. Where parties has expressly agreed that time should be of essence
b. Where there has been a notice by either parties as to time being essential
c. Where the subject matter of the contract requires that time should be of essence. eg. Contract for
perishable goods.
Meaning – It means it looks to the intention of parties and not to the words, and it looks to the
realities rather than to mere appearances.
Recognition in Indian subcontinent – This maxim has been recognized in Sections 55 and 74 of
Contract Act and Sections 114 and 114-A of Transfer of Property Act.
This is the maxim by the means of which an equitable remedy was established which allows for the
terms of a contract to be interpreted by taking into account the intention of the parties. The common
law was very rigid and could not respond favourably to demand of time, this meant regarding the
form of the contract more important than the substance. Equity, on the other hand, looks to the
spirit and not the letter of the contract. This principle is enshrined in the provision for relief against
penalty and forfeitures which states that the object of a contract is to perform it and not the
compensation, thus the compensation must be proportionate to the damage and not benefit the
receiver (Section 74 of the Indian Contract Act provides for claiming reasonable compensation). In
the case of the contract for the sale of land, if the party fails to complete within a fixed period, equity
allows reasonable time to the party to complete it (Parkin v. Thorold).

(x) Equity acts in personam

While common law acts in rem, equity is said to act in personam. This means that equity is
interested in the person while common law proceeds against the subject matter. Though equity tried
to adjust its position, it is still not enforceable against a bona fide purchaser for value without
notice.

a. Committal to Prison: here, equity orders the defendant to be commuted to prison until he
fulfills the obligation required of him.
b. Writ of Sequestration: Here, the court of equity appoints a third person in charge of the
defendant’s property until he performs the obligation so ordered.
c. Vesting Order: The court may transfer the defendant’s property to another person and that
other person obtains a good title.
d. Jurisdiction Abroad: The court can order the performance of an action against a person
within its jurisdiction for or against a subject matter outside its jurisdiction. See the case of PENN
V BALTIMORE, AYINULE V ABIMBOLA.
Meaning – Courts of equity, described as courts of conscience, operate primarily in personam

binding the conscience of a person and thus bringing an individual’s conscience under its sway. Its
decrees were regarded not merely as decisions concerning the rights and properties in dispute but
as decrees, decisions, and directions, positive or negative, addressed to the individual party or
parties. Thus on one side an individual’s conscience was sought to be bound and on the other, the
Chancellor exercised his jurisdiction guided according to his own conscience. This maxim being
descriptive of the Equity Courts’ procedure covers a large portion of its procedural and remedial
action.
Recognition in Indian subcontinent – According to opinions of many learned text writers22no

such jurisdiction is recognized by Indian courts while according to some, the courts in India have
but limited powers of making a decree in personam. The opinions are thus divided. The Civil
Procedure Code, Section 16 does not deal with this problem; it explains the division of jurisdiction of
the municipal courts only. Till now we have no such decisions bearing directly on this issue. Though
courts in India have limited powers of making a decree in personam. Equity may act in personam in
India too. The proviso to Section 16 of the Civil Procedure Code is thus an application, though in a
highly modified form, of the maxim “equity acts in personam”.
This maxim states the equity applies to a person rather than a property. In England, the Court of
Common law and Chancery Courts were distinguished by the fact that the former had authority
over the person as well as property but the latter only acted over people. The Equity court’s coercive

power arose from their authority to hold the violator in contempt of court and punish accordingly.
Since the law of equity was applicable to the persons and not the property, it could also apply to the
property outside a jurisdiction, provided that the person was within the jurisdiction. In the case
of Penn v. Lord Baltimore, an order of specific performance was made for the plaintiff who brought
a boundary dispute case to an English Court, yet the land was situated in Maryland, USA. the
jurisdiction of the court was applicable to the parties as they both were English and lived in
England.
Unit – II
Trust:
 Nature and definition of Trust.
 Kinds of Trust
 Creation of Trusts
 Rights and Liabilities of Beneficiaries
 Rights, Duties, Powers and Liabilities of Trustees
Introduction
Trust constitutes a very important and comprehensive branch of Equity jurisprudence. Trusts have
been applied to a great variety of cases, which never could have been in the contemplation of those
who originally introduced them, but which, nevertheless, are the natural attendants upon a refined
and cultivated state of society, where wealth is widely diffused, and the necessities and conveniences
of families, of commerce, and even of the ordinary business of human life, require that trusts should
be established to exigencies of time to come.
The Indian Trusts Act is one of India’s most significant pieces of legislation. The objectives of trusts
in India are governed by and protected by this statute. India’s trust law is intricate and has seen
extensive development. According to the Indian Trusts Act, a trust’s main goal is to safeguard the
interests of its beneficiaries.
Meaning Of Trust

The word, “Trust” in its legal sense has a technical and definite meaning which is very much
different from the sense in which we use the word in our daily parlance. The three certainties,
namely, a person, who is a trustee, for the property which may be chattel or land or money or any
property tangible or intangible which is called trust property and a person for whose benefit the
property is held. The combination of these three elements must exist, before we get the relationship
of Trustee and beneficiaries. Mere intention to create a trust without a gift of property for the
purpose or object would not be a trust.
Thus, when a person has property or rights which he holds or is bound to exercise for or on behalf of
others, or for the accomplishment of some particular purpose or for particular purposes, he is said
to hold the property or rights in trust for others, for the purpose and he is called Trustee. A trust is a
purely equitable obligation and is enforceable only in a court in which equity is administered.
Definitions Of Trust
Section 3 of the Indian Trust Act defines trust as an obligation annexed to the ownership of
property, and arising out of confidence reposed in and accepted by the owner, or declared and
accepted by him for the benefit of another one or of another and to the owner.
According to Smith, “A trust is a duty deemed in equity to rest on the conscience of the legal
owner. This duty may be either passive, such as to allow the beneficial ownership to be enjoyed by
some other person, named as the cestui que trust, in which case the legal owner is styled a bare
trustee, or it may be some active duty, such as to sell, or to administer for the benefit of some other
person or persons; such as for example, are the duties of a trustee in bankruptcy
Maitland defines Trust as: “When a person has rights which he is bound to exercise on behalf of
another, or for the accomplishment of some particular purpose, he is said to have those rights in
trust for that other or for that purpose, he is called a trustee”. Maitland has said that “Trust is a
most powerful instrument of social experimentation.”
Hanbury defines a trust relationship as “That which arises where property vested in a person
or persons which they are obliged to hold to continual dominion and stewardship for the
accomplishment of a particular purpose or for other persons according to their direction, such
persons being given by Equity a quasi proprietary rights analogous to the Common Law right of
ownership”.
Classification Of Trust
Trust can be classified on the basis of:
Modes of Creation:
 Expressed & Declared Trust- An express trust is one created, not by facts and
circumstances, but by express words. For example: A declared himself a trustee of “Blackacre’
for B. Similarly where A conveys the land C in trust for B is an example of express trust.
Express Trusts Are Called Declared Trust.
 Implied Trust– Such trusts are created. or raised by act of construction of law. It arises
from the presumed intention of the owner of the property. In the case of Cook vs Fountain,
“express trusts are declared either by word or in writing, and these declarations appear
either by direct and manifest proof,or violent and necessary presumption. It is also called
as presumptive trusts.
 Constructive Trust– A constructive trust is a duty by one person or company to hold some
property for another person or company. A constructive trust is set up by a court as an
“equitable remedy.”
 Resulting Trust– A resulting trust is an equitable reversion that arises by operation of law
whenever a person has created an express intentional trust, but the express trust fails or does
not completely dispose of the trust property.
Objects Of Trust
 Private Trust: A private trust primarily confers a benefit of the trust on certain persons or
a class of them. When the trust is established for family members, relatives, friends, etc. then
the trust is called a Private Trust.
 Public Trust: A public trust, confers a benefit on the public at large.Trust to promote public
welfare or education are public trusts and they may incidentally confer a benefit on an
individual or a class of them. It is to be noted that there must be a purpose or objective behind
this type of trust. A public trust may be a charitable trust or a purpose trust or a religious
trust but it must be answerable to the public also.
Constituents Elements Of Trust

The essential feature of trust is that the trustee holds the property or must exercise his rights of
property in a fiduciary capacity and stands in a fiduciary relation to the cestui que trust.
The main features of trust are as follows:

 The person creating the trust reposes confidence in the person in whom he vests the property
to the intent that it is to be held for the benefits of a third person.
 The relationship is with reference to the property that is vested.
 Trust shall be utilized for the benefits of a third person, called a beneficiary or cestui que
trust.
 There must be Intention of the author to create trust.

 Purpose of the trust must be lawful.
 The monetary asset is assigned for the benefit of the trustee.
 Gives control or transfer the trust property to the trustee which includes the intention of the
author.
 Trustee can claim expenses & salary from the benefits from the trust of his work.
Also according to Section 4 of Indian Trust Act, A trust may be created for any lawful purpose.
The purpose of a trust is lawful unless:
 It is forbidden by law, or
 Is of such nature that, if permitted, it would defeat the provision of any law,
 Fraudulent in nature involves,
 Implies injury to the person or property of another, or the court regards it as immoral or
opposed to public policy.
Every Trust of which the purpose is unlawful is void. When a trust is created for two purposes of
which one is lawful and the other is unlawful and the other two purposes cannot be separated, the
whole trust is void.
Nature Of Trust, Trustee’s & Beneficiary’s Right

In English law “Trust” involves the conception both of an obligation as well as of ownership. The
trustee is sometimes said to be the ‘legal’ owner, while the cestui que trust is the ‘equitable’ owner,
but this expression is not accurate, for the interest of the trustee may be, and often equitable only. It
is better therefore to say that the trustee is the ‘nominal owner’, while the cestui que trust is the
‘beneficial’ owner of the property.
Prof. Keeton has correctly observed about the nature of equity in following terms, “A trust is, the
relationship which arises wherever a person called the trustee is compelled in equity to hold
property, whether real or personal, and whether by legal or equitable title for the benefit of some
persons or for some object permitted by law, in such a way the real benefit of the property accrues
not to the trustee but to the beneficiaries or other objects of the trust.”
The conception of a trust, as such involves that of a double ownership in the sense that one person in
whom property is vested is compelled in Equity to hold it for the benefit of another or for some
purpose other than his own. The former is called the trustee, and his ownership is trust ownership;
the latter is called beneficiary and his ownership is beneficial.

Salmond explains double ownership in this way that the trustee is destitute of any right of
beneficial enjoyment of trust property. His ownership, therefore, is a matter of form rather than of
substance, and nominal rather than real.
In India, there is no such thing as equitable ownership, and when property is vested in a trustee,
the owner is the trustee. The Indian beneficiary cannot, therefore, have any equitable ownership in
the land. He can only have rights against the trustee, which are laid down by the Indian Trusts Act,
1882. The Indian Law thus differs from the English Law on this point.
INDIAN TRUSTS ACTS, 1882 is an act related to private trusts & trustees.
Definition – According to Indian Trust Act, trust means an obligation annexed to the
ownership of property, & arising out of a confidence reposed in & accepted by the
owner for the benefit of another or for another and owner.
 The person who declares the confidence is called the author of the trust.
 The person who accepts the confidence is called trustee.
 The subject matter of the trust is called trust property or trust monetary.
 The written document through which trust is created is called instrument of trust.
 The person whose benefit the confidence is accepted is called beneficiary.
Thus, a trust is an acceptance of an obligation by a person in against of some property or funds to

use it or hold it for the benefit for the person whom the trust is created.
CREATION OF TRUST
The elements of valid trust are presented in section-6.
The act defines how the author could create the trust, assign trustees and give them his monetary
assets to be controlled by the trust. It may be express or implied. It includes-
 Intention of the author to create the trust.
 Purpose of the trust.
 The monetary asset is assigned for the benefit of the trustee.
 Gives control or transfer the trust property to the trustee which includes intention of the
author.
 Trustee can claim expenses & salary from the benefits from the trust of his work.

The requirement of the trust law is that the author should indicate by words or conduct with the
reasonable intention to create a trust.
The effect of the provision is a valid trust requires four certainties-

 Certainty of author’s intention,
 Certainty of object,
 Certainty of beneficiary &
 Certainty of trust property.
For example: A property transfer within the same family no valid trust will arise because the
beneficiary of the trust is not indicated with certainty similarly if the transferee distributed the
property amongst the member of same family, as he should think most deserving, here there is also
no valid trust because there should be no certainty about beneficiaries but where a person transfer
is property and his assets to another person for payment of his creditor. This is not trust but a
transfer on a condition mentioned under a trust law in India.
SECTION 8 – About the subject matter

Under this provision, the trust law requires that the subject matter must be property & are capable
of being transferred to beneficiary.
SECTION 5 – Nature of the property

Under this provision, properties which are transferred to the trustee may be moveable or
immoveable.
In case of immovable property, it may be valid if the author of the trust & the trustee being signed
on the instrument & by the will of the author of the trust
The provision of trust law in India cannot be used for the purpose of committing fraud. (R/W Sec-4)
SECTION 4 – Purpose should be lawful

Under the provision, sec4 states that a trust must be created for lawful purpose.
Where the purpose of law of trust is unlawful, the trust becomes void.
But as if the trust property is located in foreign country, the law of that country shall apply.
Trust Law in India requires that the purpose should be lawful.
Unless it is not being-
 It is forbidden by the law,

 It is fraudulent,
 It is of such nature that, if permitted it would defeat the provision,
 The court regards it as immoral or opposed to public policy.
Suppose for example- trust for fraudulent of creditors,

SECTION 7– Competent to contract
According to sec-7 of the trust law in India says that a trust may be created by every person
competent to contract. But where the trust is created on behalf of minor, permission from civil court
jurisdiction should be obtained first.
SECTION 9 – Who may be beneficiary
Under the provision, every person capable of holding property may be a beneficiary. As if the
proposed beneficiary may renounce his interest under the trust he can by disclaimer addressed to
the trustee, by giving notice.
WHO MAY BE TRUSTEE UNDER THE TRUST LAWS

Section 10 says that every person who is competent to contract are capable of holding property as
trustee.
However no person is bound to accept a trust. When a person is appointed as a trustee, he has the
option to accept or reject the trust. He has to intend his acceptance by words, written, spoke or by
conduct. The assigned trustee may disclaim it also, but he must do with in the reasonable time. His
disclaimer will prevent the property to transfer to the trustee. But in case of more than one proposed
trustee & one of the trustees disclaim, the property will vest to the other trustee & he will become the
sole trustee vice versa. A proposed trustee who accepts becomes the trustee from the date of the
creation of trust. Where a person by his will leaves certain property in trust for another & the
proposed trustees prove his will that amounts to acceptance of the trust on their part.
Under English law, the property becomes to the subject of two kinds of ownership. The trustee
becomes the legal owner & beneficiary regarded as beneficial owner.
Under Hindu law, provision clearly says that the trustee having possession of the property. The
beneficiary has certain rights under the trust under Indian trust law. Beneficial ownership is also
known as equitable ownership but it is not known in the trust law in India.
KINDS OF TRUST UNDER THE TRUST LAW

There are different kinds of trust which are discussed below-

Express trust– If the trust was created verbally, in written or in expressed term and a person is
being nominated to be the trustee of the trust it would amount to express trust. If the property is
moveable then firstly it should be registered & have to physically transferred to the trustee.
Implied trust– An implied trust is also created by an act of the parties. It appears from the
conduct of the parties.
The conduct of the party creates presumption & also shows the intention of the parties.
Public & private trust– A public trust under the trust law in India is one which is created for the
benefit of the public. In general Public doesn’t mean public as whole. The trust may be created for a
part of public & it will be valid trust so long as every member of particular class is permitted to
enjoy the benefit of the trust. Examples of general public purpose are- medical, health, social service,
education, training etc.
Private trust is basically is made for a specified person so that no one left the one can draw the
benefit. Such a trust is enforceable at the private action of intended beneficiary.
Secret Trust– Where neither the existence of trust nor its terms are disclosed, it is called secret
trust. In case the existence of trust is disclosed but its terms are not disclosed it is a half secret. This
is a misuse of concept trust.
REQUIREMENTS FOR STARTING PUBLIC TRUST UNDER THE TRUST LAW

The general rules emerge from judicial authorities is that the charitable trust must satisfy 3
requirements-
 The trust must be for the promotion of public benefit.
 The trust must be wholly & exclusively charitable
 The trust must be charitable of nature
LIABILITIES OF TRUSTEE UNDER TRUST LAW

Liabilities of trustee defined in Section 23 to Section 30 of the trust law. They are as follow-
 Liability for breach of trust
Where the trustee commit breach of trust, then he is liable to compensate the beneficiary or the trust
property which loss sustained unless the beneficiary has by fraud induced the trustee to commit the
breach.
A trustee committing a breach is not liable to pay in some following cases-
1. When he has actually received interest,
2. Where he may be fairly presumed to have received interest.

3. Where the trustee ought to have received interest.
 No set off against liability
Where a breach of trust in two distinct forms, one causing loss & the other brings profit, the trustee
cannot say that his liability for the loss should be reduced by set off against it the gain in simple
words if breach of trust cause loss the trustee has to bear. If it brings gains it will go the benefit of
trust property.
 The position of co-trustees
The general rule is that a trustee is not liable for the breach of trust committed by any one of his co-
trustees
EXCEPTIONS-
 Section 26 declares where the trustee is liable for the breach of his co-trustees.
 Where he has delivered the trust property of his co-trustee without seeing to its proper
application
 Where he comes to know of a breach of trust committed by his co-trustee or intended to

commit & trustee doesn’t take proper steps to protect the interest of the beneficiary.
RIGHTS & POWERS OF TRUSTEE UNDER TRUST LAW

 Right to title
A trustee is entitled to have in his possession the instrument of trust & all the documents of title
relating to the trust property.
 Indemnity from Gainer of breach of trust
Where a breach of trust has occurred and a person other than a trustee has received benefit from the
breach, he will be bound to indemnify the trustee. Such indemnity is not available to a trustee who
has been guilty of fraud in breach of trust.
 Settlement of accounts
When the duties of a trustee have been completed, he is entitled to have the accounts of his
administration of the trust property examined and settled.
General Authority of trustees

A trustee has the right to do all such acts that are reasonable & proper for the realization, protection
or benefit of the trust property & also for the protection of a beneficiary who is not competent to
contract. This is known as general authority of trustee.

 Power to convey
The completion of sale may require certain formalities (formality of conveyance). Section 39 gives
the power of conveyance to trustee. The section says that after the completion of sale the trustee
shall have the power to convey to the person as may be necessary.
 Authority to deal with trust property under trust law
Where the authority to deal with trust property is given to several trustees and any of the trustees
disclaim or dies the authority may be exercised by the continuing trustee. This will not be applied in
those situations where the instrument of trust is specific on the point that the trust executed only
some specific number of trustees.
 Power to sell
Where a trustee has the authority to sell the trust property he may sell the property subject to the
charges or free of them. He may sell the whole property in one lot or in installments either by public
auction or by the private at one time or at different times. But the trustee can perform such activity
when it is mentioned in the trust deed.
Charitable Trusts and their distinction with private trusts
What is a Trust?
Trust is defined in section 3 of the Indian Trust Act, 1882 as “an obligation annexed to the ownership
of property and arising out of a confidence reposed in and accepted by the owner, or declared and
accepted by him, for the benefit of another or of another and the owner. In other words, it is simply
a transfer of property by one person (the settlor) to another (the “trustee”) who manages that
property for the benefit of someone else (the “beneficiary”). The settlor must legally transfer
ownership of the assets to the trustee of the trust. In India trust is the second most popular form of
registration.
Types of Trust
Generally, there are two types of trusts in India: private trusts and public trusts. While private
trusts are governed by the Indian trusts Act, 1882, public trusts are divided into charitable and
religious trusts. The Charitable and Religious Trust Act, 1920, the Religious Endowments Act, 1863,
the Charitable Endowments Act, 1890, the Bombay Public Trust Act, 1950 are some of the statutes
for the enforcement of public trusts in India.
Moreover, in recent times, trusts can also be used as a vehicle for investments, such as mutual funds
and venture capital funds. These trusts are governed by Securities and Exchange Board of India
(SEBI).
Who can form a Trust?

According to Section 7 of Indian Trusts Act, 1882, a trust may be created by the following persons:
1. Every person competent to contract (given in Section 11 of Indian Contract Act, 1872);
2. By or on behalf of minor with the permission of a principal civil court of original jurisdiction;
3. Hindu Undivided Family;
4. Association of Persons (AOP);
5. Trust by a woman;
6. Company
How to form a trust?

• One can make a trust with the help of a legal firm or a bank, for which a trust document has to be
drafted and this should state the type of trust it would be.
• It should clearly state the name of the settlor, the trustees and the beneficiaries, as well as a list of
all the assets the trust would hold.
• Apply for a permanent account number for the trust and open a bank account for it as it is a
separate entity.
• The trust may or may not be registered; registration is required only if an immovable property is
transmitted to the trust.
Who can be a Trustee?
As per Section 10, any person who is capable of holding property may be a trustee; except to the
condition of discretion of trust, in that case, he cannot execute it unless he is competent to contract.
Comparing Public and Private Trust

Public and private trust can be distinguished in a number of ways. A simple way to differentiate
between a public and a private trust is to know the beneficiaries of the trust. If the beneficiaries
make up a large or substantial body of public, then the trust in question is public. A public trust
exists “for the purpose of its objects, the members of an uncertain and fluctuating body,” and is
managed by a board of trustee. If, however, the beneficiaries are a narrow and specific group such
as the employees of a company, then the trust is private. So the basic difference between both the
trusts is that in the former, the interest is vested in an uncertain and fluctuating body whereas in the
latter, beneficiaries are definite and ascertained individuals. Supreme Court in Deoki Nandan v.
Murlidhar 1957 AIR 133 1956 SCR 756 also highlighted the difference between public and private
trust. Supreme Court said that in private trust, the beneficiaries are specific individuals, whereas, in
the public trust, they are general public or class thereof.
Public Trusts in India

Trusts designed for the benefit of a class or the public generally. In general, such must be created for
charitable, educational, religious or scientific purposes. As stated earlier there is no Central Act
applicable for Public trusts, but various states have enacted their own acts suitable to their
conditions and administration. Public trusts are popular because it is relatively easy to register and

manage them. All one needs to do is to draft a trust deed stating the trustees, the objectives of the
trust, and the intended beneficiaries who are a part of the general public.
The trust is then registered under the State Trusts Act, thereby making the trust eligible for
government tax rebates, namely the Income Tax Act. Generally, a public trust is of a more
permanent nature than a private trust.
Religious endowments and wakfs are variants of public trusts that come into being when an
endowment, usually, property, is dedicated for religious purposes.
The creation of religious charitable trusts is governed by the personal laws of the religion. The
administration of these religious trusts can either be left to the trustees as per the dictates of the
religious names or it can be regulated by statute. In case of Hindus, the personal law provisions
regulating the religious trusts have not been codified and are found dispersed in various religious
books and epics.
Like the private trusts, public trusts may be created inter vivos or by will. The working of such
trusts can be regulated and supervised by both, the state and the beneficiaries. To create a
charitable trust three certainties are required which are:

1. Declaration of trust made by settlor which is binding upon him,
2. Setting apart certain property by settlor and thereby depriving himself of the ownership rights,
and
3. A statement of object for which the property is thereafter to be held, that is the beneficiaries.
It is essential that the transferor of the property viz. the settlor or the author and the trustee are
competent to contract. It is also necessary that trustees should signify their assent for acting as
trustees to make the trust a valid one. Once the trust is created and the property is transferred to the
trust it cannot be revoked.
In case of breach of public trust, either the Advocate General or two or more persons having interest
in the trust can institute a suit regarding following matters:
1. Removal of a trustee
2. Appointment of a new trustee
3. For vesting any property in a trustee
4. for directing a trustee who has been removed as a trustee to provide possession of any trust
property in his possession to the person entitled to the possession of such property
5. for directing accounts inquiries.
Private Trusts in India

A trust is called a private trust when it is constituted for the benefit of one or more individuals who
are ascertained. Private trusts are governed by the Indian Trusts Act, 1882. A private trust may be

created inter vivos or by will. If a trust is created by will it shall subject to the provisions of Indian
Succession Act, 1925.
Ingredients of a valid Private Trust

There are certain guidelines or ingredients one should keep in mind to open a trust. These are:
1) Declaration made by the author or settlor of property who can set aside certain property for the
benefit of beneficiaries. The author of the trust is a person who declares the confidence.
2) There must be a trustee who manages this property for the benefit of the beneficiaries as per the
trust deed, that is, the transfer of ownership by the author to the trustee. The settlor can also become
a trustee. A trustee is a person who accepts the confidence by the author.
3) There must be a beneficiary or beneficiaries who can get benefits from the property of settlor.
4) There must be a properly demarcated trust property.
5) The objects of the trust must be clearly specified.
Private trusts are increasingly playing role in protection of wealth. As the trust route to succession
planning gains popularity in India, the rich are increasingly looking at asset protection, rather than
saving on taxes or passing on wealth to the next generation. According to Barclays Wealth Insights
report, 61 percent of family disputes in India were due to wealth distribution. Forming trusts can be
a good alternative to these disputes because trusts can function even when one is alive but a person’s
will comes into effect only after his/her death.
Private Trusts can also help insolvency protection. If the settlor is a beneficiary, the share of the
trust’s assets belonging to the settlor or beneficiary can be attached in case of bankruptcy.
Generally, there is no statutory requirement to create trust by any instrument. Supreme Court in the
case of Radha Swami Satsung v. CIT, (1992) 193 ITR 321 (SC) held that no formal document is
required to create a trust but still it is desirable to create trust in writing in the case of will or where
an immovable property is Rs 100 and more.
Private trust will cease to exist when the purpose of formation of trust is fulfilled or the object of
formation of trust becomes unlawful or the trust is revoked or when there is a destruction of trust’s
property.
Registration of Public and Private Trusts

Registration of a trust is necessary when it is declared by a non-testamentary instrument. This
registration would be required even if the instrument declaring the trust is exempt from the
registration under the Indian Registration Act.
In the case of a Private Trust declared by a will, registration will not be necessary, even if it involves
an immovable property.
In case of Public Trust, whether in relation to movable property or immovable property and
whether created under a will or inter vivos, registration id optional but desirable.

In case of Charitable or Religious Trust in relation to an immovable property, for claiming
exemption under Section 11 of the Income Tax Act, 1961 it is essential that the instrument of trust is
duly registered.
Taxation of Private and Public Trusts

Being an independent entity private trusts are taxed separately. Generally, there are two situations
on which the income of the trust is taxed viz. share of a beneficiary/specific trust and discretionary
trust. In the case of a specific trust income is received by the trustee on behalf of beneficiary while in
case of latter, the shares of beneficiaries are not known as there is more than one beneficiary. In
case of discretionary trust, income is determined by the trustees rather than by a representative.
Public trusts are taxed as per the sections 11 to 13 of the Income Tax Act, 1961 which deals with
taxation of charitable Trust.
• Section 11 provides the manner in which income is exempt from income-tax.
• Section 12 provides the income of trust from contributions.
• Section 12A provides the conditions as to registration of trusts, etc.
• Section 12AA provides the procedure for registration.
• Section 13 provides section 11 not to apply in certain cases.
The basic condition for claiming exemption of income by the trust is that “Income should be derived
from the property held under a trust and the said income should be applied to charitable or religious
purpose in India”.
Different types of Trust

The different types of trusts can be ascertained with the identification of the beneficiaries. It also
depends upon the class of person. By looking at the class of person, who is going to be benefitted, we
can ascertain about its types.
In India, we mainly find two types of trust which are:
1. Public trust
2. Private trust
Public Trust
In public trust, it is uncertain about where the interest has been vested upon and upon whom it has
been entrusted. It is known as public trust because it is created for the benefit of a large number of
people. So, in this case, we can say that the beneficiaries are the general public at large. Public trust
is further divided into two parts; Religious and Charitable trust.
Requirement of Public trust

 For creating a public trust, the requirement is that the trust to be made must be for the benefit
of the general public. The public should Definitely get benefitted from such trust.

 For making public trust, it should be charitable.
Private Trust
A private trust is the type of trust which is for the benefit of an individual. In a private trust, there is
certainty regarding whom the interest has been vested. A private trust can be created for the benefit
of individuals as well. A private trust can be further divided into two parts:
1. Whose recipients can be resolved;
2. Whose recipients can’t be resolved.
Creation of a Private Trust

A private trust can be created for any lawful purpose. A person who is of sound mind, above the age
of 18 years, and who is not disqualified by the law to contract is entitled to the creation of a private
trust. Besides humans, any company or a firm or, an association can create a private trust.
In case of a breach of trust

In case of any breach of trust, the trustee is bound to compensate for the loss. But a trustee is not
liable for the loss if it is done by his co-trustee and if he had taken due care and diligence on his part.
Case law: Mohan lall seal and ors v. Kanak lall Seal and anr:
In this case, it was laid down that though the act only applies to private trust, besides this it also
lays down principles that will be equally applicable to both public and private trust.
Parties in a Trust
There are three major parties to a trust which are:

1. Trustor
2. Trustee
3. Beneficiary
Who is a Trustor
A trustor is that person who firstly creates an agreement and afterward grants the trustee to have
control over the assets and the property.
Who is a Trustee
A trustee is a person who is responsible for managing all the trust for what he had been appointed
for. A trustee will basically hold the title of the property with which he/she is trusted.

Who is a Beneficiary
A beneficiary is a person who receives the benefit of the agreement of trust. In simple words, a
beneficiary is a person who is going to receive the benefits of the trust created.
Role of trustor:
 His main work includes making the trust.
 Another role is the appointment of trustees.
Role of the trustee:

 He must obey and rely upon the wishes and guidelines of the trustor.
 The trustee is responsible mainly for the administration of the trust. The trust includes many
things for example: paying income tax to the authority.
 A trustee has the duty to be loyal to the beneficiary.
 A trustee has the duty to take reasonable care.
 A trustee has the duty to not delegate his power or work to any other person.
 A trustee is bound to manage everything according to the wishes of the trustor and to his best
interests.
 A trustee is bound to protect the trust property.
 A trustee is bound to take care of all accounts of the trust property.
Characteristics of a valid Trust

1. There must be a certainty of intention for which the trust is being created.
2. There must be certainty regarding the subject matter of the trust.
3. Object for which the trust is entrusted must be certain.
Why is the concept of Trust increasing

The concept of trust is now much more popular than it was earlier. The concept of trust is mainly
used by the settlor for the transfer of the property. Some trusts are also created for the benefit of the
minor children.
Purpose of the Trust

A trust can be formed for carrying many works, one of such important works is succession. Trust
acts as a vehicle for work-related succession.

Objectives of a Trust
The object of the Trust shall not include any activity for the profit within the meaning of the Income
Tax Act, 1961. The other objectives of the trust are listed as follows:
1. To encourage the human resources development, development of educational institutions

from pre-primary, primary, high school, pre-university college, degree colleges, and other
courses. Maintenance of learning centers for the transformation of personality, confidence
building, positive inking, communication skills, etc.
2. To start, manage, and administer any orphanage, nursing homes, old age homes, hospitals,
libraries, or social status to acquire land and building and other assets and properties for
achieving the objectives of the trust.
3. To provide medical facilities for deserving children of the rural locality. To start rural health
clinics, hospitals, mobile health units, etc.
4. To spread the messages of preserving and conserving the Indian culture to save the same
from the influences of the western cultures throughout India and of all foreign countries.
5. To help and to provide relief to the poor irrespective of caste, creed, race, religion, or
language.
6. To lift the public from the curses of poverty, hunger, illiteracy, and diseases by starting and
carrying out concentrated and intensive programs.
7. To cooperate with the central and the state government and other authorities in extending
aid for educational purposes.
8. To work with special concentration for the child and women’s welfare.
9. To promote charitable values, literature, science, education, and culture.
10. To explore ways for the promotion of socio-economic development in the community.
11. To work for the welfare of the neglected and marginalized section of the society.
12. To protest and fight against the injustice against people.
13. To aware people of social issues so they can fight against evils.
14. To provide and facilitate legal assistance to underprivileged and poor sections of trust to
fight for their rights and justice.
These are some of the objectives which a charitable trust has and the list is too long.

Constitution of charitable Trust
In India, we have the Indian Trust act, 1882. But the provisions of the Indian trust act, 1882 do not
apply to Public trust (Charitable trust).
Conditions for creation of a Trust
There are certain conditions attached while forming a charitable trust. The conditions are
listed as follows:
1. There must be a founder of the trust, for which purpose the trust is to be created.
2. There must be trustees.
3. The main ingredient: which is the property of the trust.
4. Beneficiaries, those people who will basically get benefited from the trust created.
5. There must be an intention to create trust.
6. Purpose of trust must be known.
7. There must be a transfer of the property to the trustee himself.
8. The settlor has to give up all his interest in the property.
9. There must be a clear descriptive analysis of the property.
10. It must be clearly mentioned that for what purpose the trust has been created, it’s objects.
11. In all cases, there is no such requirement of the trust deed. But in certain cases, it is advisable
to have such an instrument.
Who may create Trust

If we talk in a general sense a person who is capable of creating a trust can form a trust.
 In India, any person who is competent to contract can enter into a contract.
 Any person is competent to enter into a contract only when the person has reached the age of
majority i.e.,18 years or above.
 The person entering into a contract must be of sound mind and must not be disqualified from
contracting into any type of contract.
 A minor can also get its trust only after prior permission from the Principal Civil Court. A
person can also stand on behalf of the minor.
Section 7 of the Transfer of Property Act, 1882:

According to the provision of Section 7 of the transfer of property act, 1882, only that person is
entitled to create a trust who is competent to contract and who has the authority to transfer such
property.
So, basically, there are only two main requirements to who may create a trust.
First is that the person must have the power or authority for that disposition of the property and
second, that the person must be competent to contract.
But the Indian Trust act, 1882 does not apply to public trust (Charitable trust).
Trust property:
The trust has been created with the help of the property. The property is the main ingredient for
creating trust. The main purpose for which the trust has been created is to make the beneficiaries
get the benefit from that agreement.
But what if the property which we trust is destroyed?
So, there is a great need to protect the property. The main work of the trustee is to manage the
property trusted. A trustee is responsible for taking care of the trusted property. So he must do his
duty.
Transfer of trust property by the beneficiary

The beneficiary can direct the trustee to transfer the trust property to him or to such other person as
the beneficiary. But where there is more than one beneficiary and all of them agree then they can
also direct the trustee to transfer the property to them or to the other person to whom the
beneficiaries desire the property to be transferred.
A beneficiary can also transfer his interest in the property to the other person and the person to
whom the interest is transferred shall have the same rights and liabilities as the beneficiary had
from the date of transfer of interest itself. But a condition is also attached to such transfer of interest
the interest can only be transferred by the beneficiary or beneficiaries as the case may be when they
have attained the age of majority and are of sound mind and also are not disqualified by any law
for the time being in force in India.
Above all the cases if the beneficiary is a married woman and the trust property has been
bequeathed to her via the trust to ensure that she would never deprive herself of her beneficial
interest then the trust property and the interest cannot be transferred according to the above
insistence.
Documents and accounts of trust property

There is a trust account. In this, all the assets are held by a third party for the protection of the
beneficiary. There are different types of trust accounts on the basis of their types.
Protection of trust and trust property

Whenever trust is created the main duty is to manage it properly. The first duty is to control the
trust and the property as well.
When a third party claims that this is his trust, The beneficiary can file a suit declaring that this
property belongs absolutely to the trust.
Some important and unknown facts about Trust in India:

 In India, private trust is being governed by the Indian Trust Act, 1882 and on the other hand,
public trust is managed by themselves. Except in some states.
 There is no maximum limit prescribed for the number of trustees. But the minimum limit has
been mentioned, which is two trustees at the time of the registration process.
 The registration process is incomplete without the most important document which is ‘Trust
Deed’.
 Only Public trust can avail the benefit of exemption from tax.
Scope of charitable trust under the Transfer of Property Act

In India, private trust is governed by the Indian trust act, 1882 but the Public trust is governed by
different statutes. Public trust is also classified further into two subtypes. One is Charitable trust
and the second is religious trust. Till now there is no central legislation for governing public trust.
But many states like Maharashtra and Madhya Pradesh have enacted their own separate
legislation for public trust.
In our Constitution, the charity has been in our concurrent list, meaning thereby that both the state
and the center have the power to legislate over the charitable trust.
Section 11, 12, and 13 of Income-Tax Act:
Under Sections 11, 12, and 13 of the income tax act 1995, it is being mentioned that charitable trust
will be exempted from all types of income tax.
Distinguish trust with respect to mortgage, lease, or sale:

There are a lot of differences between mortgage, lease, trust, and sale. When a property is given by
way of lease, transfer, or mortgage then it involves only two parties.
There are some types of income on which no tax can be imposed upon them. These
types of income are exempted from paying taxes. These income are:
 Income derived from charitable or religious purposes.
Liability of beneficiary
Apart from the rights of a beneficiary, there are some liabilities of the beneficiary as well which are:
1. Duty to compensate the trustee in case of any damage
It is the duty of the beneficiary to compensate the trustee in case of some type of damage to the trust.
If any type of injury or any type of damage is caused by him to the trust, then he is bound to
compensate it to the trustee.

2. Liability in cases of Breach of Trust
The beneficiary will be held liable if there is a breach of trust on part of him, then he will be liable for
all the losses.
3. Liability not to harm the interests of others
If the beneficiary provides any harm to another party’s interests then the beneficiary will be liable
for all the harm caused to that party.
4. Liability not to take any benefit without consent
A beneficiary is bound not to take the advantages without the consent of other beneficiaries.
5. Liability of not claiming interest more than his interest
A beneficiary should not claim more than his interest. He should only claim whatever he is entitled
to get.
6. Liability in case of deceiving the Trustee
If in any case, it is found that the beneficiary has deceived the trustee in any way leading to the
breach of trust ultimately, then the beneficiary will be held liable.
Discharge of a trustee
Under the provision of the Indian trust act in 1882 it is being mentioned about the procedure by
which a trustee will be discharged.
1. He will be discharged on the extinction of the trust.
2. By that procedure which is described under the instrument of trust.
3. He can be discharged if a petition has been filed in the Court for his discharge.
4. A trustee can be discharged if a new trustee has been appointed in his new place.
And moreover, a trustee can get himself discharged by applying to the civil court for seeking
discharge from his office. And if the court is satisfied with his reasons for discharging then the court
can discharge the trustee.
But if the court thinks that these are not sufficient reasons, then the court will not discharge the
trustee unless and until they find an appropriate person on that behalf.
At last, it can be concluded that the concept of Trust revolves around 3 parties. The 1st party is the
grantor of the trust himself, the 2nd party is the trustee and the 3rd party is the beneficiary. A
beneficiary is that party who is going to be benefitted from such an agreement. These three parties
have their own rights and duties which are being assigned to them upon the Trust deed. Trust deed
is a kind of instrument for the declaration that it is a trust. These days there is an emergence of the

concept of trust that it is coming as a mode of succession. Now the law is changing according to the
circumstances.
Current scenario
Trusts today play a significant role in most financial and legal systems and are also recognized
under the Hague Convention. The government has also exempted non-residents and private
discretionary trusts from the mandatory filing of income tax return electronically.
Conclusion
Trust is a concept which generally features around the author, the trustee and the
beneficiary/beneficiaries having rights and obligations assigned to each of them. There are many
advantages of trust like protection of wealth, protection of insolvency, taxation, welfare of family
members, helps in succession of property and much more. If the trust is formed with all the required
legal procedures then it is for beneficial each of the organ of a trust.
Extinction of Trust
What is the Extinction of Trust?

The extinction of a trust is the termination or complete dissolution of a trust arrangement,
effectively ending its existence and operations. This can occur under several circumstances as
stipulated by law.
According to Section 77 of the Indian Trusts Act, 1882, a trust can be extinguished when its purpose
is fully achieved, if the purpose becomes unlawful, if fulfilling the purpose becomes impossible due to
reasons such as the destruction of the trust property or if the trust is explicitly revoked.
Once extinguished, the responsibilities of the trustees end and the trust property may need to be
distributed or handled according to the terms of the trust or legal requirements.
Circumstances for Extinction of Trust

The extinction of a trust marks the cessation of its legal existence, typically when its predetermined
conditions are met or altered by circumstances outlined in the governing legal framework, such as
the Indian Trusts Act, 1882. This discussion explores the four primary circumstances under which a
trust can be extinguished according to Section 77 of the Act.
1. Fulfillment of Purpose

The primary and most straightforward circumstance for the extinction of a trust occurs when its
defined purpose has been completely fulfilled. This means that the objectives for which the trust was
established have been achieved, rendering the trust’s continuation unnecessary.
Case Example: In the case of Amrit Lal Kohli and ors. vs Harbansh Lal Kohli and ors, the
trust was set up in 1966 for the benefit of the settlor’s minor sons until they reached maturity and
were well-established. The court ruled that the trust’s objectives had been met as the beneficiaries
had grown up and settled, leading to the trust’s lawful termination.
2. Unlawful Purpose
A trust must be extinguished if its purpose becomes unlawful. According to Section 4 of the Indian
Trusts Act, the illegality of a trust’s purpose can arise under various conditions:
 It is explicitly forbidden by law.
 It would defeat the provisions of any existing law if allowed to continue.
 It involves or implies fraudulent activities.
 It results in injury to the person or property of another.
 It is regarded as immoral or opposed to public policy.
When a trust’s purpose is declared illegal, it must be terminated to prevent the continuation of an
unlawful activity.
Legal Framework: If a trust has mixed purposes, where some are lawful and others unlawful and
these purposes are inseparable, the trust must be terminated entirely. However, if the lawful
purposes can be distinctly separated from the unlawful ones, the trust can continue for those lawful
purposes.
3. Impossibility of Fulfillment
A trust is also terminated when it becomes impossible to fulfil its purpose, whether due to the
destruction of the trust property or other reasons that prevent the continuation of its activities.
Case Example: In Gela Ram vs District Board Muzaffarnagar (1923), a trust was
extinguished when the land designated to connect a main road with a public garden was sold and
the garden ceased to exist. The purpose of the trust became impossible to fulfil, leading to its lawful
termination.
4. Revocation of Trust
Trusts can be revoked in specific situations, leading to their extinction:
 By Consent: If all beneficiaries are competent to contract, they can agree to revoke the
trust.
 By Reservation: Trusts can be revoked if there is an express power of revocation reserved
by the author of the trust, which can be exercised under the conditions specified at the
creation of the trust.
 For Payment of Debts: A trust created for the payment of the author’s debts can be
revoked at the author’s discretion, provided it has not been communicated to the creditors.
Legal Note: The burden of proof to demonstrate the irrevocability of a trust typically falls on the
creditors, who must prove their assent and reliance on the trust’s provisions.
Extinction of Religious or Charitable Trusts

Religious and charitable trusts, once established, generally hold a permanent and irrevocable
status. The creation of such trusts often involves dedicating property for the service and worship of
a deity, a family or a public temple, making such dedications steadfast and unalterable.
This immutability is anchored in the principle that once a religious or charitable trust has been
effectively set up, it becomes immune to revocation—even if the trustees fail to fulfil the intended
objectives of the trust. This ensures that the trust’s assets remain perpetually dedicated to the
designated religious or charitable purposes.
Moreover, Halsbury’s Laws of England notes that although charitable trusts can be declared with
express powers of revocation, there is a lack of judicial decisions regarding the validity of such
powers, specifically in relation to the rule against perpetuities.
This underscores the complex nature of revoking such trusts, further emphasising their generally
permanent character. Consequently, the provisions for the extinction of trusts under Section 77 of
the Indian Trusts Act, 1882, do not typically apply to religious or charitable trusts, reinforcing their
enduring nature.
The Role of Trustees and Beneficiaries

Upon the extinction of a trust, trustees are required to settle any remaining obligations, distribute
the assets according to the terms of the trust or legal directives and ensure a clear and documented
end to the trust’s operations. Beneficiaries must be informed and involved, as appropriate,
especially in cases where their consent is necessary for revocation.
Conclusion
The extinction of a trust under the Indian Trusts Act, 1882, is a process bound by legal stipulations
designed to ensure that trusts serve their intended purposes without leading to perpetual
obligations.
Each scenario for the extinction of a trust reflects a balance between fulfilling the settlor’s intent and
adhering to legal and ethical standards. Understanding these conditions is crucial for trustees,
beneficiaries and legal professionals involved in trust management and litigation.

Unit – III
Easement:
 Definition, Nature and Kinds of Easement.

 Easement of necessity and quasi easement
 Acquisition of prescription and customary easements
Meaning and nature of Easements

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882.
According to the provisions of Section 4, an easementary right is a right possessed by the owner
or occupier of the land on some other land, not his own, the purpose of which is to provide the
beneficial enjoyment of the land. This right is granted because without the existence of this right an
occupier or owner cannot fully enjoy his own property.
It includes the right to do or continue to do something or to prevent or to continue to

prevent something in connection with or in respect of some other land, which is not his own, for
the enjoyment of his own land.
The word ‘land’ refers to everything permanently attached to the earth and the words ‘beneficial
enjoyment’ denotes convenience, advantage or any amenity or any necessity. The owner
or occupier referred to in the provision is known as the Dominant Owner and the land for the
benefit of which the easementary right exists is called Dominant Heritage. Whereas the owner
upon whose land the liability is imposed is known as the Serviant Owner and the land on which
such a liability is imposed to do or prevent something, is known as the Servient Heritage.
Illustrations-
1. ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his
house, to move out of the street. This is known as right of easement.
2. A voluntary dedication of right by ‘X’ to the public for passing or re-passing over a surface of
certain land is not a right of easement.
3. X’s right to go on his neighbour Y’s household for fetching water from the well for the purpose
of his own household is a right of easement. Here, the way to the well is through Y’s land
only. Hence, X has an easementary right to pass through Y’s household.
In the words of great jurist Salmond, easement is that legal servient which can be
exercised on some other piece of land specifically for the beneficial enjoyment of one’s
own land. Right of easement is basically a form of privilege, the integral part of which is to do an
act or prevent certain acts on some other land for enjoyment of one’s own land.

Other examples of right of easement includes-
 Right of way
 Right to discharge rainwater
 Right to sunlight etc
Essentials of Easements
1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of two properties i.e dominant and
servient heritage is a must. This is because as per the definition, it is the right exercised by the
owner or occupier of one land for enjoying the benefit of his/her land, over the land of some other
person. Dominant and servient heritage cannot be one. Thus, the existence of two properties and
that to be separate from each other is essential.
2. Separate owners
For exercising the right of easements, owners of the two properties shall be different and not a
single person.
3. Beneficial Enjoyment
The object of easements is that the dominant owner enjoys it in a way which includes express and
implied benefits.
4. Positive or Negative
Easements can be both positive or negative. Former refers to a right through which the dominant
owner does some act to exercise the right over the land of the servient owner. Whereas, the latter
denotes an act of prevention. In a negative easement the dominant owner prevents or restricts the
servient owner from doing certain act or acts.
In a right of easement an owner of dominant heritage can do an act or prevent the servient owner
from doing something but he cannot bind the servient owner to do something for him.
The easementary right exists only when two heritages are adjacent to each other. It is a right
in rem, which means a right available against the whole world. Easement as a right is
always annexed to the dominant tenement. It is a right of re-aliena which means a right
over a servient tenement and no on one’s own land.
Classification of Easements
Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–
Continuous or Discontinuous
Continuous easements are the one whose enjoyment may be continued without the intervention of
any human conduct or act of a man. There is no interference by a man and it adds special quality to
the property. While, on the other hand, right of easement for the enjoyment which an interference of

a man is required is known as discontinuous. In this kind of easement, it is necessary that a human
act is done on the servient heritage.
Apparent or Non- Apparent

An apparent easement is one the existence of which can be seen through a permanent sign. It can be
visible by a careful examination and on reasonable foresightedness. It is also known as express
easement. An inspection is required to check the existence of a right. For example- There is a drain
from A’s land to B’s land and from there it led to an open yard. This can be visible through a clear
inspection and is an apparent easement.
Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind of
easement is not visible through an inspection. There is no permanent sign as such. The right is in use
but is not visible and thus, is known as an invisible easement. For example, A’s right annexed to
A’s land to prevent B from building on his own house.
Another example to explain non-apparent easement is that the right to stop construction over a
certain height.
Limitations or Conditions of Easements

An easementary right may be permanent or for a period of years or for a limited term. It can also
be subjected to periodical interruption or may be exercisable at a particular place, between certain
hours and for a certain or particular purpose. This right can also be granted on a condition that
such a right shall become void or voidable on happening of some event or non performing of some
act. These limitations or conditions which regard to the right of easement has been specified
under Section 6 of the Act.
Restrictive Easements
Section 7 specifies that the easements are restrictive of certain rights which are as follows-
 Exclusive right to enjoy
 Right to advantages arising out of the situation
Profit a Prendre
According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of
easements. An instance to explain the concept is, a right to take earth from the land of the other
person for making an earthenware is a profit a prendre. This is basically a profit made out of the
land of the other person. Other examples of profit a prendre-
 Right of fishery
 Right to take fruits of trees in the season
This is the right which is exercised on the land appurtenant to the dominant heritage. Hence, there
shall be the existence of two heritages i.e. dominant and servient. The owner of the dominant

heritage exercises this right on the property of the servient owner. Profit a prendre is a right to do
something on the land of servient tenement for more beneficial enjoyment of the dominant heritage.
Modes of Acquisition of Easements
Express Grant
The easement can be acquired through express grant made by inserting the clause of granting such
a right in the deed of sale, mortgage or through any other form of transfer. This involves expressing
by the grantor of his clear intention. If the value of the immovable property is Rs.100 or above then
it compulsory for it to be in writing and duly registered.
Implied Circumstances
Easementary right can be acquired in implied circumstances in the following ways-
Easement of Necessity
Section 13 of the act deals with this. This consists of the circumstances where the owner or
occupier cannot use his property without exercising the right of easement over the servient
heritage. Thus, absolute necessity is the test and the convenience.
For example– X sells his land to Y for agricultural purpose. Here, Y cannot access his land
without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.
When a joint property is partitioned amongst various coparceners and if right of easement over one
share of the property is essential for the enjoyment of the share of the other coparcener then latter
shall be entitled to easement.
Quasi Easements
In the case of a person transferring his property to another person then-
 If an easement is continuous, apparent and necessary to enjoy, then in such a case the
transferee shall be entitled to it,
 If such an easement is continuous, apparent and necessary to enjoy the said property, the
transferor has a right to such easement over property transferred by him
 In case of partition of the property of the joint family, if an easement is continuous, apparent
and necessary to enjoy the share of one coparcener over the other coparcener, then he is
entitled to such a right of easement.
Easements are quasi as those are arising out of circumstances,i.e. When common properties are
converted into tenements by way of sale, mortgage, partition or through any other form of transfer.
In such a case, there is an implied grant of right of easement.
For example– P’s right attached to Q’s house to receive air and light through a window without
any obstruction by his neighbour. This is a continuous.

Prescriptive Easements
Section 15 provides for this type. Following are the requisites-
 Right must be definite and certain,
 Right must have been independently enjoyed without any agreement with the servient owner,
 Must be enjoyed openly, peacefully and as of a right without any interruption for a
continuous period of 20 years and in respect of any government land the period of non-
interruption shall be 30 years.
Customary Easements
An easement right can be acquired by virtue of a local custom. This is known as customary
easements. Section 18 of the Act provides for it. For example- people living in a particular city or
town having a right to bury the dead in a particular area or riparian right to use water.
Extinction of Easements
Section 37 to 47 of the The Indian Easements Act, 1882, provides for the mode of extinction of
easements.
Dissolution of Servient Owner’s right

In the situation where the grantor ceases to have any right in the servient tenement because of some
reason, then the right of easements ceases to exist as well. This has been specified under Section
37 of the Act. For eg- X grants a piece of land to Y for a period of 20 years in the year 1970. In the
year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest came to an end. Thus,
easementary right granted to Z ceases to end as well.
Expiry of time or happening of an event

When an easement is acquired on certain conditions or for certain purpose or for certain period of
time. On the fulfilment of such condition or purpose or expiry of the time, the right of easement
extinguishes as well as in accordance with Section 6 of the Act.
Extinction by release
Where in a situation the owner of the dominant heritage releases the right of easement to the
servient owner, the right ceases to exist. Such a release can be both expressly or impliedly made. For
eg- P has a right to discharge water through the eaves to Q’s yard. P authorized Q to construct a
building to such a height as not be able to discharge water. Q builds it and P’s right comes to an end.
Termination of necessity
When necessity terminates the easement of necessity terminates as well. For example- A grants a
piece of land to B on which easement of necessity for B is the right of his way over A’s land. Later on,
B purchases a part of the A’s land over which he may pass to reach his own land. Here, the necessity
has ended and so does the easement.
Useless Easements

When easement is of such a nature that is not useful or becomes incapable of being beneficial at any
time or under any circumstances, then the right of easement ends.
Permanent change in the Dominant Heritage

When the nature of the dominant heritage changes permanently with increase in burden on
tenement, then the right of easement ceases to exist as the purpose of it was the beneficial enjoyment
of the dominant heritage. For example- A’s house is located such that he has a right of way by
passing through B’s house. Later, due to earthquake, B’s house got cut off and thus, right of
easement ends.
Extinction by destruction of either of heritages

When either of heritages gets destroyed, the easement ends as it is essential for two properties to
exist for exercising the right.
Unity by ownership
By unity of ownership it is indicated that when one person becomes the owner of both the dominant
and servient heritage then the right of easement terminates. For instance, A has right of easement
over B’s property. Later on, A purchases B’s property and becomes the owner of B’s property. In
such a case, easement extinguishes.
Another example which can be stated her to explain the concept is that A has a right of easement
over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus,
easement terminates.
Suspension of Easements
Section 49 of the Act provides that easement can be suspended under the following circumstances-
1. An easement is or can be suspended when the dominant owner becomes entitled to the
possession of servient heritage for a limited interest. An example which can be stated here to
explain the concept is that A has a right of easement over B’s land. In future A takes B’s land
on rent, here A becomes the occupier of B’s land. Thus, easement suspends.
2. When the servient owner becomes entitled to the possession of dominant heritage for a
limited interest, the easement is suspended.
Thus, where both the dominant and servient owner becomes one, easement is suspended.
Revival of Easements
Section 51 of the Act provides for the situations wherein easement suspended or extinguished can
be revived, which are as follows-
1. When an easement is extinguished by destruction of either of the heritages then it can be

revived-

 If the heritage is restored in 20 years.
 If the heritage is rebuilt in 20 years
2. In case of unity of ownership, if the unity breaks due to some reason, then easementary right can
be revived and also through an order of a competent court.
Licenses
Section 52 of the Act deals with the concept of licenses. Where one person grants to another person
a right to do or continue to do something in or upon the immovable property of the grantor,
something which if he does will be unlawful without the prior permission or the availability of the
grant. Such a right shall not amount to an easmentary right or creation of interest in the property.
Essentials of licenses
1. It is a permission granted, i.e a right arising out of permission.
2. Legalises an act.
3. Is revocable on the act of the grantor.
4. It is always in respect of immovable property.
5. It is a right in personam.
Revocation of licenses
License can be revoked in following ways-
1. If from the cause of preceding the grant, the grantor himself ceases to have any interest in the
property, the license gets revoked. Grantor’s interest comes to an end.
2. By express and implied release of the license by licensee.
3. There are certain cases wherein a license is issued under certain conditions or limitations.
This includes a license issued on a condition that if a certain act is doe or is not performed
then the license may become void. In such a situation wherein these acts are performed then
license can be revoked. Also, licenses are granted for the fulfillment of certain acts and once it
is fulfilled license can be revoked.
4. Where a property in relation to which a license was granted gets destroyed due to any
reason, then a license can be revoked.
5. Where, a licensee himself becomes the owner of the property for which license was granted,
then the purpose for which license was granted ceases to exist and thus, the license also
ceases to exist and gets terminated.
6. When licensee does not use it for a period of 20 years then the license gets revoked.

Transferable Licenses
According to Section 56 of the Act, a license can be transferable under the following conditions-
1. A license to attend a place of public entertainment may be transferred by the licensee. This
may be gathered from the grant or contract, or from surrounding circumstances or local
usage. For instance, P grants Q, a right to walk over P’s field whenever he pleases. The right
is not annexed to any immovable property of Q. The right cannot be transferred.
2. Transfer by licensee- The general rule is that the licensee cannot transfer his license. If he
transfers then the transferee becomes a trespasser and can be or may be ejected.
Irrevocable Licenses
Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer of
property and the transfer is in force, it cannot be revoked. This is subject to the agreement. Hence,
the power can be reserved. The rule is that a bare license may be revoked but if coupled with a
transfer of the property, then it is irrevocable.
A license coupled with an interest in a land is binding. A license coupled with profit a prendre is
irrevocable, for example, Right to excavate earth and carry it to make earthen wares, right to cut
and carry timber on payment of royalty.
If the licensee, has executed some work which is permanent in nature and has incurred expenses, the
licence cannot be revoked and hence, is irrevocable. For example, there are two companies, namely
X and Y having lands adjoining to each other. The agents were common who managed to put up the
building and tank on X’s land for use by Y. License is irrevocable as the rule applied as was held in
Ramson V dyson.
Tabular difference between Licenses and Easements
Easements
License
1. License is a form of personal 1. Right of easement is a right
right attached to an appurtenant to immovable
immovable property. property.
2. It is a right in personam. 2. It is a right in rem.
3. It is a right which can be

3. This right cannot be attached. annexed to the property to which
it is attached.
4. Easements are not revocable

4. License is revocable.
at all.

5. It is a permission given by the
5. It is acquired as of a right.
licensor i.e the grantor.
The Indian Easements Act, provides for the whole concept of right of easements and its
regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the owner
of the dominant heritage over the heritage of servient owner for the beneficial enjoyment of his own
land. It not only defines what actually easements consist of but also provides with its classification.
Easements can be prescriptive, customary, quasi and of necessity.
Thereafter, modes of acquiring easements has been provided under Section 7 of the said Act
according to which it can acquired through an express grant or is in certain circumstances
considered to be an implied right. If easement is to be acquired through the express grant then
such a clause has to be specifically mentioned in the deed of sale, mortgage or any other deed in
accordance with the mode of transfer. Easements is a right in rem, that is, it is available against the
whole world. It can be subject to limitations as well and can be restrictive too. Easements can be
both positive and negative. Whereas, on the other hand licenses can only be positive in nature.
Further, the Act talks about the provisions regulating the suspension, extinction and revival of the
easements. Also, how easements is different from licenses has been discussed. The article also
explains the concept of licenses along with its essentials. License can be revocable as mentioned in
the Act and irrevocable as mentioned under Section 60 of the Act. They can also be transferred
according to Section 56 of the Act. It is a right in personam which is not available against the whole
world but is granted personally.
Section 13: Easements Of Necessity And Quasi Easements | The Indian

Easements Act, 1882
Bare Act
Where one person transfers or bequeaths immovable property to another,
 (a) if an easement in other immovable property of the transferor or testator is necessary for
enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to
such easement;
 (b) if such an easement is apparent and continuous and necessary for enjoying the said
subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee
shall, unless a different intention is expressed or necessarily implied, be entitled to such
easement;
 (c) if an easement in the subject of the transfer or bequest is necessary for enjoying other
immovable property of the transferor or testator, the transferor or the legal representative of
the testator shall be entitled to such easement;

 (d) if such an easement is apparent and continuous and necessary for enjoying the said
property as it was enjoyed when the transfer or bequest took effect, the transferor, or the
legal representative of the testator, shall unless a different intention is expressed or
necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,

 (e) if an easement over the share of one of them is necessary for enjoying the share of another
of them, the latter shall be entitled to such easement;
 (f) if such an easement is apparent and continuous and necessary for enjoying the share of
the latter as it was enjoyed when the partition took effect, he shall, unless a different intention
is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes
are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
Illustrations
 (a) A sells B a field then used for agricultural purposes only. It is inaccessible except by
passing over A's adjoining land or by trespassing on the land of a stranger. B is entitled to a
right of way, for agricultural purposes only, over A's adjoining land to the field sold.
 (b) A, the owner of two fields, sells one to B, and retains the other. The field retained was at
the date of the sale used for agricultural purposes only and is inaccessible except by passing
over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B's
field to the field retained.
 (c) A sells B a house with windows overlooking A's land, which A retains. The light which
passes over A's land to the windows is necessary for enjoying the house as it war enjoyed
when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by
building on his land.
 (d) A sells B a house with windows overlooking A's land. The light passing over A's land to the
windows is necessary for enjoying the house as it was enjoyed when the sale took effect.
Afterwards A sells the land to C. Here C cannot obstruct the light by building on the land, for
he takes it subject to the burdens to which it was subject in As hands.
 (e) A is the owner of a house and adjoining land. The house has windows overlooking the
land. A simultaneously sells the house to B and the land to C. The light passing over the land
is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A
impliedly grants B a right to the light, and C takes the land subject to the restriction that he
may not build so as to obstruct such light.

 (f) A is the owner of a house and adjoining land. The house has windows overlooking the
land. A, retaining the house, sells the land to B, without expressly reserving any easement.
The light passing over the land is necessary for enjoying the house as it was enjoyed when the
sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such
light.
 (g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against
A, to pollute the air, when necessary, with smoke and vapours from the factory.
 (h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to
the benefit of all the gutters and drains common to the two houses and necessary for enjoying
Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters
and drains common to the two houses and necessary for enjoying Z as it was enjoyed when
the sale took effect.
 (i) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a
right to lateral support from A's building, and A is entitled to a right to lateral support from
B's building.
 (j) A, the owner of two adjoining buildings, sells one to B, and the other to C. C is entitled to
lateral support from B's building, and B is entitled to lateral support from C's building.
 (k) A grants lands to B for the purpose of building a house thereon. B is entitled to such
amount of lateral and subjacent support from A's land as is necessary for the safety of the
house.
 (l) Under the Land Acquisition Act, 1870(10 of 1870), a Railway Company compulsorily
acquires a portion of B's land for the purpose of making a siding. The Company is entitled to
such amount of lateral support from B's adjoining land as is essential for the safety of the
siding.
 (m) Owing to the partition of joint property, A becomes the owner of an upper room in a
building, and B becomes the owner of the portion of the building immediately beneath it, A is
entitled to such amount of vertical support from B's portion as is essential for the safety of the
upper room.
 (n) A lets a house and grounds to B for a particular business. B has no access to them other
than by crossing A's land. B is entitled to a right of way over that land suitable to the business
to be carried on by B in the house and grounds.
An easement by necessity is a legal right that allows someone to use another person’s
property when there’s no other reasonable way to access it. Here are the key points
about easements by necessity:

1. Creation: Easements by necessity are implied by law rather than created through an
explicit agreement. They arise when a landlocked property owner needs access to their land,
and there are no other practical means of entry.
2. Landlocked Properties: Imagine owning a piece of land that doesn’t directly touch a
public road or any other accessible property. In such cases, an easement by necessity may be
granted to ensure reasonable access.
3. Just Results: Courts recognize easements by necessity to achieve fair outcomes. If denying
access would be unjust or impractical, the law steps in to create this easement.
4. Examples:
o Landlocked Parcel: Suppose you own a plot of land surrounded by other properties,
with no direct road access. The law may grant you an easement over a neighboring
property to reach your land.
o Emergency Access: Easements by necessity can also apply to emergency situations.

For instance, if someone’s house catches fire, firefighters need a way to reach it even if
the usual access is blocked.
5. Elements:
o Strict Necessity: The lack of any other reasonable access options is crucial.
o Common Ownership: The properties involved must have been owned by the same
person at some point (before being divided).
o Continuity: The necessity must exist continuously, not just temporarily.
6. Termination: Easements by necessity can be terminated if the necessity no longer exists

(e.g., a new road is built).
Remember, easements by necessity are about ensuring practical access, especially in situations
where fairness and common sense demand it
KEY TAKEAWAYS:
 Easement is the right of owner to enjoy his land and use it as he desires.
 Easement can be acquired in 7 ways.
 The right of the easement can be imposed by Owners, Lessors, Mortgagors.
 Easement is governed by the provisions of the Indian Easement Act, 1882

The development of human civilization has begun when people started living in groups, in
realization of the each individuals’ private rights with mutual benefits within the society. Hence, the
right of easement dates back to the period of recognition of private property in a definite society.
Such a right, arises out of certain aspects of morality, which permits a third person to enjoy certain
benefits in relation to the property, on which he has, neither ownership nor possession. With due
progress in the society, the legislation has given deference to the easement rights, which makes it
necessary for us to have a line of thinking on it.
Easement - Meaning and Definition

Easement[i] is a right, which the owner or occupier of certain land possesses as such, for the
beneficial enjoyment of that land to do and continue to do something, or to prevent and continue to
prevent something being done, in or upon, or in respect of, certain other land not his own. The land
for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner
or occupier of such land is called the dominant owner. The land on which the liability is imposed is
called the servient heritage and the owner or occupier of such land is called the servient owner.
Modes of acquisition of easements:

There are several methods by which easements may be acquired. They are:
 Express grant
 Implied grant
 Presumed grant
 Acquisition by prescription
 Customary easement
 Transfer of dominant heritage
 Imputed grant
 Statute
The various modes of acquisition of easement are explained in detail in the following paragraphs.
1. Express grant:
The most direct method of creating an easement is by express grant. Express easements are created
by a written agreement between landowners granting or reserving an easement. An express
easement is created by a deed or by a will. Thus, it must be in writing. Express easements must be
signed by both parties and are recorded with the deeds to each property. An express easement can
also be created when the owner of a certain piece of property conveys the land to another, but saves
or reserves an easement in it. This arrangement is known as an "easement by reservation."

Similar to a deed of a property it must contain the name of the property owner which is requesting
the easement, as well as the owner of the property where the easement is to be created. Once
created, the witnessed process will consist of the easement being signed by the grantor, giving his or
her consent and permission for the use of land. In addition, the easement must be notarized and
furthermore conveyed to the owner it has been granted to.
Example of it would be an individual who requests access to build a walkway on his neighbour's
property. The grantor in this case can grant the easement for the length of their ownership over the
property to the grantee, not anytime longer. This specifies the life of the easement created through
an express grant.
Sec. 8 to 11[ii] deal with the scope of the power to impose easements.
The persons such as
 Servient owners (sec.9)
 Lessor (sec.10)
 Mortgagor (sec.10)
may impose easements on the respective properties of servient heritage, leased and mortgaged
subject to certain conditions whereas a lessee cannot impose easement after the derogation of his
rights under sec.11 of the Act.
In Booth v. Alcock[iii], it was ruled out that General words in a grant should be restricted to that
which the grantor had then the power to grant and will not extend to anything which he
subsequently acquire. So the easement granted could not continue after the expiration of servient
owner’s interest.
Sec 12[iv] states that “An easement may be acquired by the owner of the immovable property for the
beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of
the same.”
An easement is also acquired by a co-owner. The permission of other co-owner is not necessary in
this case. But a lessee cannot get such a right.
In England, easement could be created only be a deed. In the absence of writing, the grantee could
only have a revocable bare license[v]. An easement can be made orally in India. Easements in
writing require registration under Indian registration Act[vi].
2. Implied grant:
Even when no document or agreement has created an express easement, an easement right may still
be understood (or "implied") by a situation or circumstances[vii]. To create an easement by
implication, three requirements must be met:
 The easement must be at least reasonably necessary to the enjoyment of the original piece of
property.

 The land must be divided (or "severed"), so that the owner of a parcel is either selling part
and retaining part, or subdividing the property and selling pieces to different new owners.
 The use for which the implied easement is claimed must have existed prior to the severance or
sale.
Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the
practices and customs of use for a property. Courts typically refer to the intent of the parties, as well
as prior use, to determine the existence of an implied easement.
a) Easement by prior use:

An easement may also be created by prior use. Easements by prior use are based on the idea that
land owners can intend to create an easement, but forget to include it in the deed.
There are five elements to establish an easement by prior use:
1. Common ownership of both properties at one time
2. Followed by a severance
3. Use occurs before the severance and afterward
4. Notice
1. Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the
hidden existence of a sewer line that a plumber could identify may be notice enough)
5. Necessary and beneficial
1. Reasonably necessary
2. Not the "strict necessity" required by an easement by necessity[viii].
The easement by necessity and quasi easements have been referred under sec.13[ix].
b) Easement by necessity:
Clauses (a),(c),(e) of Sec.13[x] explains easement by necessity. Similar to an easement implied by
prior use, in property law, an easement implied by necessity[xi] is created only when a landowner
divides her land among two or more owners.
But an easement by necessity arises only when that division of land causes a newly divided parcel of
land to no longer have access to a public street, regardless of whether some of the owner’s land had
previously been used to access that portion before the division of the land[xii].
A person claiming an easement by necessity must prove the following:
 Severance of unity: One of the parties has divided her land and transferred part of it to the
other party.

 Loss of access: The division of the land caused the claimant’s land, whether the parcel
retained by the grantor or the parcel granted to the grantee, to no longer have a legal right of
access to a public street.
 Necessity: At the time the property was severed, the claimant’s land didn’t border a public
street or have any other existing easement over private land to get to a public street. This is
the only kind of “necessity” for which one may have an easement by necessity[xiii].
But even if these conditions are met, some courts have held that the easement isn’t implied if the
parties have otherwise indicated their intent not to create an easement — such as the grantee’s
acknowledging in the purchase agreement that the land he’s buying doesn’t have access to a public
street.
In Hero Vinoth (Minor) v. Seshammal[xiv], court held that an easement by grant does not get
extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of
necessity is one which is not merely necessary for the reasonable enjoyment of the dominant
tenement, but one where dominant tenement cannot be used at all without the easement.
The owner of the servient land can specify the location of the easement by necessity over her land.
But if she doesn’t do so within a reasonable time after severance, the dominant tenant can choose
the access route over the servient land.
The grantee can choose only one way when there are more than one ways[xv].This doctrine rests
upon absolute necessity and not the mere convenience[xvi]. The easement by necessity exists only
over land that was divided over either the grantor’s or the grantee’s land and only when the division
itself cut off access to a public street.
An easement by necessity is terminated when the necessity no longer exists. This occurs when other
access becomes available[xvii].
c) Quasi easements:
A quasi easement is almost always appurtenant to property. In other words, once the easement is
created, it is attached to one property and burdens other property, and will exist regardless if
mentioned in deeds to the property. A quasi easement will exist when there is: 1)an existing use at
the time of a division and grant, 2) the use was apparent of the division and grant, and 3) the use
continued for the benefit reasonable comfort and enjoyment of a property after the division and
conveyance[xviii].
When it comes to the quasi-servient tenement, apparent and continuous easements are capable of
acquisition on a severance of tenements by the grantor under an implied reservation as ruled out in
Pyer v. Carton case[xix] and sec.13(d)[xx]. No express reservation is necessary as in English law. In
cases of way of necessity, reciprocal easements, simultaneous conveyances[xxi].
Whereas in case of quasi dominant tenement, when the owner of an entire property grants part of
that property as it is then used and enjoyed, he is presumed by law to grant everything which is

essential to the use and enjoyment of quasi-dominant tenement similar to those in English law as
ruled in Wheeldon v. Burrows[xxii].
3. Presumed grant:
In England, it is possible to acquire easements by long usage under the common law of prescription
(based on user since time immemorial), under the Prescription Act 1832 or under the doctrine of lost
grant[xxiii]. Under this doctrine, use of a right for 20 years gives rise to a presumed grant. It is
assumed that there has been an express grant of the easement but that it has been lost. English law,
however, only allows for the acquisition of easements by prescription in the case of fee simple
(freehold) land.
The earliest reported decision on this subject is Lewis v. Price[xxiv].
In Dalton v. Angus[xxv], two adjoining houses had been built each on the extremity of its owner’s
soil. One of the houses was converted into coach factory openly. Twenty years after the conversion,
the other house was pulled down so that the plaintiff’s coach factory would lose the support and it
sank and fell. The plaintiff claimed the right of support under the doctrine of lost grant and
succeeded in the appeal. The court held that no prior grant is required to apply this doctrine.
In India, there is absolutely no proviso prescribing Doctrine of lost grant as a mode of acquisition of
easement but is accepted judicially as the Indian Easements Act is not exhaustive. Sec.21 of
Limitation Act prescribes the minimum period of twenty years to establish this right[xxvi].
4. Acquisition by prescription:
An easement by prescription is one that is gained under principles of a legal concept known as
"adverse possession", under which someone other than the original property owner gains use or
ownership rights to certain property[xxvii].
Section 15[xxviii] provides for the acquisition of the right of easement by prescription. Prescription
means acquisition of a right or title by user of possession had during the period and in the manner
prescribed by law. A man who cannot show any other title may acquire property or certain rights
by showing that he has been in possession of the property or enjoying rights for a very long-
time[xxix].
Conditions for Acquisition of Easement rights by prescription:

A scrutiny of Section 15 reveals that the following conditions should exist before an easement can
become absolute by prescription :
 There must be a pre-existing easement which must have been enjoyed by the dominant
owner (Nec precario),
 The enjoyment must have been peaceable (Nec Vie),
 The enjoyment must have been as of right (Nec Clam),
 The enjoyment must have been as an easement,

 The right must be enjoyed openly,
In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd.[xxx], The Supreme Court has laid down that to
establish the clause under Section 15, continuous user of 20 years as of right to do the act
complained of in assertion of a title, peaceably and openly must be made out.
(6) The enjoyment must have been for a period of twenty years,
This period is of sixty years when the servient heritage belongs to the Government. Till this period of
twenty years has elapsed the right remains an inchoate one, and no court will protect an inchoate
right.The right becomes absolute only when questioned in the court.
In M. Jadavji v. S.S. Randidas[xxxi], it was held that if somehow the enjoyment, whatever its
duration, ceases and no suit is initiated within two years of the cessation thereof the enjoyment has
lost all efficacy for the purpose of acquiring an easement.
(7) The enjoyment for 20 years must have been without interruption.
In Ram Sahai v. ManSingh[xxxii], it has been held that the fact that the mode of enjoyment was
changed from time to time during the period of twenty years does not cause an interruption within
Section 15 where the change in the mode of enjoyment is due to an act on the part of the dominant
owner himself.
All the above 7 ingredients of an easement right must be proved to have been present during the
whole of the prescriptive period of 20 years.
In Chapsibhai v. Purushottam[xxxiii], it was held that if the owner of a dominant tenement has
during the period of prescription, exercised rights on the footing that he is the owner but which
he later on claims as an easement over a servient tenement, then, his exercise of those rights is not
exercised as an easement and he must fail in a claim for an easement.
Where the easement is enjoyed under the pretext of life interest or other exceeding three years, such
period is excluded from the computation of the said period of twenty years as under sec.16 of the
Easements Act.
In Bankey Lal v. Kishan Lal[xxxiv], it has been held that a right of way may be acquired by
prescription if it is exercised openly and with the knowledge of the owner of the servient tenement,
but a right to commit a nuisance cannot be acquired by prescription no matter how often the act of
nuisance is repeated.
In Tulasamma v. Nandula Buchairamiah [xxxv], It has been held that once the easement is acquired
by prescription, there is no scope for issuing a mandatory injunction to put an end to the mode of
enjoyment which has given rise to the easement.
Rights which cannot be acquired by prescription:

Section 17 of the Indian Easements Act, 1882 provides for the rights which cannot be acquired by
prescription.
These are as follows :

 A right which would tend to the total destruction of the subject-matter of the right, or the
property on which, if the acquisition were made, liability would be imposed.
 A right to the free passage of light or air to an open space of ground.
 A right to surface water not flowing in stream and not permanently collected in a pool, tank
or otherwise.
 A right to underground water not passing in a defined channel.
5. Customary Easement:
Sec.18[xxxvi] “Customary easement. -An easement may be acquired in virtue of a local custom. Such
easements are called customary easements.”
A customary easement is not an easement in the true sense of that expression. It is not annexed to
the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of
the dominant tenement; it is recognized and enforced as a part of the common law of the locality
where it obtains. A customary easement arises in favour of an indeterminate class of persons such
as residents of a locality or members of a certain community, and though not necessarily annexed to
the ownership of land, it is enforceable as a right to do and continue to do something upon land or
as a right to prevent and continue to prevent something done upon land. Sanction for its
enforceability being in custom, the right must satisfy all the tests which a local custom for
recognition by courts must satisfy[xxxvii].
In Rup Chand v. Sh. Daulatu[xxxviii], it was held that the right of using the edges (mainds) of each
other’s fields for going to their respective fields by the agriculturists is a customary right of
easement and not a right of easement which is to be acquired by prescription or by necessity.
Customary easements are acquired by virtue of local custom. Prescriptive easements are
acquired on proof of peaceable enjoyment for twenty years. No fixed period of enjoyment is
necessary for customary easements. A customary easement belongs to those land owners of an
ascertained class, caste or community who for the time being happen to own lands within that
particular area or locality where the custom prevails. A prescriptive easement, on the other hand, is
not limited to a particular locality, it can be enjoyed wherever land can be found. A customary
easement must satisfy all the essentials of a custom, viz., it must be ancient, reasonable, continuous
and certain. But prescripstive easements need not be reasonable.
Other modes of acquisition:

Transfer of dominant heritage: Dominant heritage transferred by the act of the parties or by the
operation of law carries the incidental easement rights with it under sec.19[xxxix]. A has certain
land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests
in B and his legal representative so long as the lease continues[xl].

Imputed grant: Easements are established by proof of immemorial enjoyment and created by the
operation of doctrine of acquiescence when the servient owner actively encourages the dominant
owner to exercise a right[xli].
Statute: By legislation easements may be created. Indeed even the rights which do not have
the characteristics of the easement may be statutorily declared to be easements.
Conclusion:
From the analysis, we are able to understand the various modes of acquisition of easements such as
express grant, presumed grant, prescriptive etc., and the differences between them. The claim for
easementary rights can legally take place through any of these forms and the principles can also be
borrowed form other legal systems, to assist the process. Though the provisions of the Act are not
apparent about the application of these principles and certain doctrines, judicial interpretation
clears all the ambiguity. The study of easement is important even in layman’s context, so as to have
his common rights established with respect to a person’s property. Apart from the legislation, it is in
the hands of the judiciary to prevent such abuses. The reliance on English law also adds to our
strength.

Unit – IV
Licence:
 Definition
 Essentials
 Difference between Licence, Easement and Lease
 Revocation
Introduction
The term ‘easement’ is derived from the old Latin word ‘aisementum’ meaning ‘comfort, convenience
or privilege’ and evolved into ‘a legal right or privilege to use anything other than one’s own’ from
an early easement. It is the granting of a non-possessory property interest that grants the easement
holder permission to use the land of another person. It is referring to the right that a man would
sometimes have a licence is a personal right and granted to the individual doing something on the
grantor’s immovable property is not creating value on the property itself. This is strictly a
permissive right, which is the grantor ‘s personal privilege. This does not impose any duties and
responsibilities on the individuals making the grant and is thus revocable except in such conditions
specifically provided for in the Act itself. When granted, the license has no other effect of giving the
licensee freedom to go to the land that would otherwise be lawful.
Section 52 of Indian Easement Act, 1882 defines licence as something in which a person grants
another, or a certain number of other persons, the right to do or continue to do in or on the grantor’s
immovable property. This principle was incorporated into the Indian Easements Act of
1882. Section 52 till Section 64 of the Indian Easements Act, 1882 are concerned with licenses and
their administration. Unlike a Lease, a license is merely a right to allow the use of the subject land.
Lease involves the transfer of possession of the property/land area to the lessee. A lease implies to
give the lessee the possession of the premises/land area. The lessor shall retain only the right of
possession of the subject land unless otherwise agreed. On the other hand, the license is merely given
permission and that authorization does not require the full ownership right to the property in
question. The licensor reserves the legal as well as the physical right of possession in a licence.
The licensee has only the right to use it in terms of the license agreement for the purpose it was
agreed upon. The legal principle is that the courts seek to infer the parties’ purpose to decide
whether the parties agreed to create a lease or license. A lease and license agreement should be
carefully drafted with great care in order to project that the parties only intend to create a license
agreement and not a lease agreement. The absolute possession of the subject property should never
be handed over the licensee, for otherwise, the agreement may be construed as a lease Agreement.

Definition
As per Section 52, if a person gives or proceeds to do in or on the grantor’s immovable property
anything that may be unlawful, or the rights are not easement or interest in the land, to another
person or a certain number of certain people, in the absence of such right is called a license.
The license, in a popular sense, means three things:

 Authorization to do it,
 Certificate or document embodying the authorization in question, and
 License fee which is the price granted for the privilege.
Essentials of a licence
 Two different persons.
 There has to be a grant.
 License is always useful.
 License is granted to do something in or upon the grantor’s immovable property.
 The license does not relate to ownership of any land but only creates a personal right or
obligation.
Case Laws
Associated Hotels of India v. R.N. Kapoor

According to Section 52, as stated in the case, where an agreement only allows the right to use the
land in a specific manner or under certain conditions while it remains in the possession and control
of the owner, thereof, it shall be a licence. Therefore, legal possession remains with the property’s
owner, but the licensee is allowed to use the premises for a particular purpose.
But his occupation would be unlawful for the permission. This does not establish any estate or
interest in the property in his favour. Therefore, the distinction between the two concepts is clear.
The dividing line is clear though it gets very thin or even blurred at times. At one time, the
application of the exclusive possession was considered unfailing and if a person was granted
exclusive possession of a premise, it would be conclusively proved that he was a lessee.
It is important to take note of the essential features of licence as under:

1. A licence does not apply to land or property possession but merely provides a legal right or
duty.

2. Licence only tends to create a title or interest in the immovable property to do something
under the authority of the licence.
3. Licence neither can be transferred nor assigned.
4. The Licence shall be a strictly permissive right that occurs through permission, express or
implied, and not by adverse exercise or otherwise.
5. It only legalizes a certain act that would otherwise be unlawful and does not grant any
interest in the property itself in or upon or over which such an act is carried out.
6. A licensee cannot sue outsiders on his behalf.
Errington vs Errington
If we talk about the facts of this case, in 1930, a father purchased a house along with his son and
daughter-in-law (Wood) and told her that the downpayment was a gift from him and said, “After
his retirement, the house would be transferred to them when the mortgage is paid.” Wood regularly
paid mortgage instalments, but Errington left the property in his wife’s name after his death. Later,
both Wood and son of Errington split. Errington was sued for possession of the property. So the
issue arose if after the death of the offeror, can a unilateral contract be cancelled. However, the
appeal was dismissed by the Court.
The Court ruled that the son and daughter-in-law had no explicit obligation to pay the instalments
and the Court could not infer those terms. He characterizes the pledge of the father as a unilateral
contract; the performative act that pays for the mortgage and hence it will only be revocable if the
couple did not make the payments. The offeror cannot cancel the offer once success has begun. The
implicit purpose of the father was to hold the house in their hands if the mortgage was paid for. The
pair were on a lease, short of a tenancy, but a statutory or at least equal right to live that would
develop into a good equal title until the mortgage was paid.
Difference between Lease and Licence
Licence
Lease
No passing of interest in the
property
Creation of interest in the property
The lease gives the tenant a right to The license confers no such right
exclusive possession to the licensee
The lease is transferable and Licence is non-transferable and

revocable non-revocable

Difference between Licence and Easement
Easement
Licence
Right in Personam Right attached with the property
Non-Transferable Transferable
Revocable on the will of grant Not revocable at the will of grant
Continuous use not necessary Continuous use necessary
Transferability of a License and Grantor’s responsibility to report defects

 It is essential to understand Section 52.
 It is amply clear that a license cannot be transferred by the licensee or exercised by its
servants or agents.
 In the case of a license, the only exception was made to visit a public entertainment place. In
such a situation, a license can be transferred if there is no other exception, i.e. a contract can
impose a negative limitation on license transferability.
 In other terms, a license other than a license to visit a public entertainment place cannot be
transferred by the licensee or his servants or agents unless a particular intention is stated or
implied.
For example:
1. A sells to B the trees that grow on his property. B has the right to go to land and take the trees
down.
2. A grants B the right to walk in his field whenever he wishes. No immovable property of B is
annexed to the right. The right is non-transferable.
Illustrations
In the case of a license agreement between the property owner (licensor) and tenant (licensee)
1. A property owner enters into a lease of it but in order to avoid the rigours of the Rent Control
law, he calls it as a license agreement.
2. Although such a lease is described as a ‘license agreement’, its terms indicate that it is
essentially a lease.

3. Such a license agreement, which places the licensee in exclusive possession of premises free
from any control and free from any direction by the licensor, will be a lease, even if it is
described as a licence.
4. For example, if the owner provides an exclusive possession of an apartment or flat or a shop
for a monthly consideration without any form of co-operation, it will be a lease regardless of
whether the owner calls the arrangement a ‘lease’ or a ‘license.’
5. As far as the person left in exclusive possession is concerned, the quality and essence of his
rights over the premises would be that of a lease or a tenant and not that of a licensee.
Such a licensee cannot be evicted, dispossessed or prevented from using the premises without lawful
action.
In case of Licenses between mall owner Licensor and Licensee shop owner
1. The landowner creates a market with a hundred stores. The owner of the mall allocates
numerous shops for specific reasons, i.e. to sell different types of products/commodities.
2. The mall owner grants licenses to licensees to carry on the identified or designated business
in relation to individual shops.
3. The owner tracks operating hours which controls maintenance in the shops.
4. The licensee is, therefore, entitled to stock the shop with his choice of brands but he does not
have the right to alter the intended intent, retain any consumer of his choosing and to set the
price/conditions for his products.
5. He can also lock the shop and open it whenever he wants at the end of business hours. In that
shop, nobody else can trade.
In this case, the agreement is a loan or leasing and the licensee cannot be dispersed or expelled
except by the recourse to law notwithstanding the licensee’s limitations and controls and
instructions and notwithstanding the grant being identified as a licence.
In case of license permit person to use a counter to sell his goods in a shopping mall
1. The owner gives a person a license to use a counter in order to sell his goods at a price in a
shopping complex or in a shopping mall.
2. The licensee controls the access and the licensee does not use a particular space exclusively.
3. The holder will close the counter at the end of the day.
4. Customers and not just licensee customers can visit and use the room around the counter.

5. In such a case, the licensee will effectively prohibit the licensee from accessing its premises. If
the license is revoked, the licensee shall have no right to use the counter except to remove any
goods.
Under such a licence, the licensee may not be required. Under this licence, the owner does not have
to sue a possession or elimination.
License between exhibitor of cinematograph films or theatre and customer/guest

1. A far smaller version of a license is where a cinematographic film exhibitor or theatre owner
allows a customer or guest to visit an exhibition hall to see and enjoy a movie or show at a
ticket price.
2. The licensee is allowed to occupy a seat exclusively for the movie’s time frame in the theatre.
3. A cloakroom in a public building with toilet facilities enables a guest to use the toilet/closet
facilities after payment of a fee.
4. The licensee shall be required solely to use the toilet/closet to relieve himself.
5. The license is for a particular reason and for a limited period of time in these situations.
6. The licensee has no other permission to access the premises, nor the right to continue using
the seat in the theatre, or to regularly use the toilet/closet.
Such a licensee can be physically withdrawn by the licensor if the licensee stays past the show or
continues to occupy the position or refuses to leave the cloakroom. The licensor isn’t allowed to sue
the licensee.
Conclusion
The fact does not mean that there is no license rule for the term license as described. There is a
licensing law but it has to be stated in terms of specific types of cases. Where a licensor does not give
cause to expect otherwise, the privileges of the licensee may be terminated at will. Where a licensor
expresses an intention of making the right more permanent, the consequences depend on certain
circumstances. The license will establish a true easement if it offends no legal regulation. Unless it
offends the law requiring a sealed instrument, it would potentially establish an easement but only
by the fair process will the applicant seek relief. If the enforcement of the license places a relatively
useless burden on the land, neither the expectations of the parties nor their formalities nor their
expenditure will give the interest the characteristics of Easement Act.
Revocation of licenses: Section 60 states that, "A license may be revoked by the
grantor unless (a) it is coupled with a transfer of property and such transfer is in force; (b) the
licensee acting upon the license has executed a work of a permanent character and incurred
expenses in the execution.[7]"

Section 62 postulates nine situations in which a license will be deemed to be revoked. These are
specified in clause (a) to (i) of the section.
Sure, here's your text with bullet points:
1. As per Section 62(a), the license is deemed to be revoked whenever the grantor loses any
interest in the property governed by the license due to an incident that occurred before the
license was granted. In the case of Kapoorchand vs. Lalchand and Others[8], it was
decided that even though a license was declared irrevocable under the terms of Section 60, it
would still be considered revoked if the grantor lost the ownership of the property as a result
of a circumstance that occurred before the license was granted. Therefore, this clause is not
restricted by or governed by Section 60 of the Act.}
2. Section 62(b) stipulates that a license is presumed to be revoked when the licensee gives it,
explicitly or implicitly, to the grantor or his agent. In Indian Molasses Co. Ltd. vs. Kerala
State Civil Supplies[9], it was decided that strong proof is necessary to demonstrate the
licensee's release of the license. The elements of Section 62(b) must be established by proving
the abandonment of the license by the licensee.
A license is presumed to be revoked in accordance with Section 62(c) of the Act where it has
been issued for a brief period of time or obtained on a condition that it would terminate upon
the performance or non-performance of a specific act. This elucidates that the license is
regarded to be revoked at the end of the said time period for which it has been granted or
upon the fulfilment or non-performance of a certain condition or task. According to the ruling
in Anandakrishnan v. The Commissioner[10], licenses shall be revoked if the time period for
which they were granted ends.
3. A license is declared revoked under Section 62(d) if the property it affects is permanently
damaged or destroyed by a stronger force to the extent that the licensee is unable to exercise
his right.
4. In accordance with Section 62(e)[11], when the licensee has complete control over the
property protected by the license, the license is declared revoked. This ownership must be
whole and in no manner partial. As a result, if the licensee acquires ownership of the
property for which he has a license under the Act, the license is assumed to have been
revoked.
5. In accordance with Section 62(f), the license is presumed to be revoked when the objective for
which it was issued has been accomplished, abandoned, or made impossible.[12] According to
the ruling in Unknown v. Chennai Metro Rail Limited[13], the completion or its unlikeliness,
thereof will result in the license being deemed revoked.

6. According to Section 62(g), a license is assumed to be revoked if the licensee was awarded the
license for holding a certain office, employment, or character and that office, employment, or
character ceases to exist.[14] In the case of Kunjamma alias P.J. Aliamma v. R. Sankara
Subramanian Thevar, it was determined that if a licensee is terminated from their job or
voluntarily resigns, or if the position that was the basis for the license becomes insignificant,
then the license granted on that basis would be considered as revoked.
7. According to Section 62(h), a license is regarded to be revoked if it is completely ceased from

being utilized as such for an uninterrupted period of twenty years and the cessation of use is
not due to a contract between the grantor and the licensee.[15] According to the decision in
Bhaga and ors. vs. Girwar and ors[16], a license is not considered revoked until it has been
dormant for a continuous period of 20 years. The failure to use the license cannot be
attributed to a contract between the grantor and the licensee.
Differences between License and Lease

Section 105 of the Transfer of Property Act, 1882 defines Lease. It states that, "A lease for
immovable property is a transfer of the right to use the property for a certain amount of time, either
explicitly or implicitly, or indefinitely, in exchange for a price paid or promised, or for money, a
share of crops, a service, or any other valuable thing that the transferee accepts the transfer on.[1]"
The lessee acquires the right to hold and enjoy the property, which he gains via the lease transfer.
This acquired interest is a transferable interest that the lessee may further transfer. If there is no
transfer of interest, there is no lease.
Distinction between Lease and License

i. A license is only a permit granted without any transfer of an interest, but a lease is the
transfer of an interest in an immovable property.
ii. In contrast to a license, a lease creates an interest in favour of the lessee with regard to the
property.
iii. In contrast to a license, which is neither transferable nor inheritable, a lease can be sublet by
the tenant, and upon the tenant's death, his legal heirs can take over the tenancy.

iv. Because a license is a personal contract, it expires with the death of either the grantor or the
grantee, but a lease does not expire upon the death of either the grantor or the grantee.
v. While a grantor may revoke a license at any time, a lease may only be terminated in
accordance with the terms and conditions outlined in the tenancy agreement.
vi. The selling of the property to a third party has no bearing on the lease. It continues, and the
buyer must wait until the tenancy ends before taking possession, whereas a license ceases
instantly if the property is transferred to a 3rd person.
vii. A lessee has a statutory right to protect the property on his own behalf. A lessee may go to
court and file a lawsuit in his name if trespassers threaten to take possession of his land. A
licensee lacks any ownership rights in the property, thus he cannot defend his possession in
his own name. The possession would be protected by the owner of the property.
viii. A lessee who is in possession of the property is allowed to make changes or additions to the
property, but a licensee does have the same right.
Landmark Judgements:
In Sohanlal Naraindas v Laxmidas Raghunath,[2] the Supreme Court observed: "Intention of

the parties to an instrument must be gathered from the terms of the agreement examined in the light
of the surrounding circumstances. The description given by the parties may be evidence of the
intention but is not decisive.
Mere use of the words appropriate to the creation of the lease will not preclude the agreement
operating as license. A recital that the agreement does not create a tenancy is also not decisive. The
crucial test in each case is whether the instrument is intended to create or not to create an interest in
the property. If it does, it is a lease, if it does not, it is a license. In determining whether the
agreement creates a lease or license the test of exclusive possession though not decisive is of
significance."
In Associated Hotels of India v RN Kapoor,[3] the question was whether using hotel rooms to
operate a barbershop resulted in a license or a lease. The case was related to the Imperial Hotel, and
A operated a hair dresser there. He asked for the standard rent to be determined, and the court had
to decide if this occupancy was authorized by a lease or a license. If it were a lease, the application
for standard rent fixation may be considered in accordance with the terms of the applicable rent
statute; but, if it were a license, standard rent fixation would not be an issue. A document referred to
as a "license deed" was used to secure the possession. The court held, while elucidating the difference
between lease and license:

"If a document gives only a right to use the property in a certain way or under certain terms while it
remains in possession of the owner, it will be a license. Therefore, the legal possession remains with
the owner of the property, but the licensee is permitted to make use of the property for a particular
purpose. But for the permission, his occupation would be unlawful. It does not create in his favour
any estate or interest in the property.
Therefore, there is a clear distinction between the two concepts. The dividing line is clear however
sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive
possession was infallible and if a person was given exclusive possession of the property, it would
conclusively establish that he was a lessee."
To define whether a document forms a lease or a license, the court established four
parameters. They are:
1. The substance of the document must take precedence over its form.
2. The true test is the "intention of the parties." Whether they meant to create a license or a
lease.
3. If the agreement creates an interest in the property, it is a lease; a license, on the other hand,
just provides for the use of the property while its owner retains legal ownership.
4. If a party has sole possession of the property as a result of the agreement, he is originally
considered a tenant. However, circumstances may arise that render the intention to lease null
and void.
In the case of Delta International Ltd v Shyam Sunder Ganeriwalla,[4] a person A formed a lease in
favour of B. B then drafted an agreement with C that was framed as a lease and license for
operating a petrol pump, a service centre, and for the sale of motor spare parts. The agreement
stated that B was not permitted, without the landlord's permission, to sublet his stake in the
property.
It was expressly stated in the deed that the license is to be provided for the purposes of using,
enjoying, operating, and working the gas station, and B was given the authority to cancel the
license in the case that any condition was breached. As per the agreement, the Supreme Court stated
that the document created not a lease but a license.

Additionally, the court approved and summarized the tests to determine the nature of the
document as follows:
i. The document's structure would be determined by its content rather than the labels that the
parties may add to it.
ii. The primary test is determining 'the intent of the parties'.[5]
iii. Although exclusive ownership of the premises being given is an important condition, the
court may nonetheless rule that the agreement is in reality a license.
iv. Even though exclusive possession is granted, only a license is formed if the grantor lacks the
capacity to grant a lease.
v. When the main objective is to utilize the premises with furnishings and fixtures for the
purpose of conducting a business, it is not a lease of immovable property.
Comparative Analysis- Comparing the Law of India with that of the USA
While there are certain similarities between the leave and license agreements in India and the USA,
there are also substantial differences. A Leave and License agreement in India is a short-term
arrangement between the owner (the licensor) and the licensee (the person who is given permission
to use the property). The terms and conditions for using the property are often outlined in the
agreement, along with the rent, the period of the agreement, and any limitations on the use of
property. To be enforceable, the agreement has to be registered with the local government.
A leasing agreement is a similar idea to a leave and license agreement in the USA. An agreement
known as a lease between a landlord and a tenant gives the tenant the right to occupy the estate for
a certain period of time, often one year. The terms and conditions for using the property, such as the
rent, the length of the lease, and any limitations on use, are often outlined in the lease agreement.
Contrary to India, a leasing agreement is enforceable without being registered with the local
authorities.
Differences between the Indian Law and the American Law
1. Firstly, a Leave and License agreement in India is a short-term arrangement between the
property's owner (the licensor) and the person who is given permission to use the property
(the licensee). During the period of the agreement, the licensor retains ownership of the
property, and the licensee merely has the right to use it. Without the licensor's consent, the
licensee is not allowed to alter the property's structure or function. Contrarily, a lease
agreement in the USA is a contract between a landlord and a tenant that allows the tenant to
occupy the property for a predetermined amount of time, often one year. In contrast to India,
the tenant has more authority over the property during the period of the lease. Subject to any
limitations outlined in the lease agreement, the tenant has the right to make adequate
modifications to the property.
2. Secondly, the length of the agreement also differs between India and the USA. A Leave and
License agreement in India is often only valid for a maximum of 11 months. The agreement
may then be extended or a new one may be negotiated. In comparison, a lease in the US is
often for a longer duration, like a year, with the option to renew at the conclusion of the term.
3. Finally, the registration procedure is different. In order to be enforceable in India, a Leave

and License agreement has to be filed with the local authorities. Legal issues for both the
licensor and the licensee may arise if this is not done. However, leasing agreements are not
required to be registered in the USA.

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Equity, Trust and

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Equity in common law jurisdictions (general)

 the law relating to express, resulting, and constructive trusts;

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 relief against penalties and relief against forfeiture;[8]

 the doctrines of contribution, subrogation and marshalling; and

History of equity in common law jurisdictions

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In 1546, Chancellor Thomas Wriothesley, a nonlawyer, was accused of trying to inject

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Statute of Uses 1535

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England and Wales

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2. Fusion of Common Law and Equity

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“Fusion Fallacy" of the Common Law and Equity

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Critical Evaluation of the “Fusion Fallacy” and the “Middle Ground”

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The Judicature Acts

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Position of Equity under Indian legal system

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Origin of Equity in India

Historical Evolution of Equity in India

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5. Constitutional Influence: Following India’s independence in 1947, the Indian Constitution

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➢ The Specific Relief Act, 1877

➢ The Indian Trusts Act, 1882

➢ The Indian Succession Act,1925

➢ The Transfer of Property Act,1882

General Principles of Equity

He who seeks equity must do equity:

Equity follows the Law:

Equity will not be a wrong to be with or without a remedy:

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1. As an equitable remedy[3], specific performance allows a court to compel a party to fulfil a

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Relevance and Application of Equity Principles in Indian Law

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Significance of Equity Under Indian Law:-

Equity in Common Law Jurisdictions

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(i) Equity will not suffer a wrong to be without a remedy

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Essentials Of This Maxim

 The right be recognised by the law, although not by law.

Importance Of This Maxim

 To give relief where the common law gave none.

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